{
     "cases": [

{"docket_number": "20-979", "syllabus": "In 2007, Pankajkumar Patel, who had entered the United States illegally with his wife Jyotsnaben in the 1990s, applied to United States Citizenship and Immigration Services (USCIS) for discretionary adjustment of status under 8 U. S. C. §1255, which would have made Patel and his wife lawful permanent residents. Because USCIS was aware that Patel had previously checked a box on a Georgia driver’s license application falsely stating that he was a United States citizen, it denied Patel’s application for failure to satisfy the threshold requirement that the noncitizen be statutorily admissible for permanent residence. §1255(i)(2)(A); see also §1182(a)(6)(C)(ii)(I) (rendering inadmissible a noncitizen \"who falsely represents . . . himself or herself to be a citizen of the United States for any purpose or benefit under\" state or federal law). Years later, the Government initiated removal proceedings against Patel and his wife due to their illegal entry. Patel sought relief from removal by renewing his adjustment of status request.  Patel argued before an Immigration Judge that he had mistakenly checked the \"citizen\" box on the state application and thus lacked the subjective intent necessary to violate the federal statute.  The Immigration Judge disagreed, denied Patel’s application for adjustment of status, and ordered that Patel and his wife be removed from the country. The Board of Immigration Appeals dismissed Patel’s appeal. Patel petitioned the Eleventh Circuit for review, where a panel of that court held that it lacked jurisdiction to consider his claim.  Federal law prohibits judicial review of \"any judgment regarding the granting of relief\" under §1255.  §1252(a)(2)(B)(i).  But see §1252(a)(2)(D) (exception where the judgment concerns \"constitutional claims\" or \"questions of law\").  The panel reasoned that the factual determinations of which Patel sought review—whether he had testified credibly and whether he had subjectively intended to misrepresent himself as a citizen—each qualified as an unreviewable judgment.  On rehearing, the en banc court agreed with the panel.  This Court granted certiorari to resolve a Circuit conflict as to the scope of §1252(a)(2)(B)(i). Held: Federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings under §1255 and the other provisions enumerated in §1252(a)(2)(B)(i).  Pp. 6–17. (a) This case largely turns on the scope of the word \"judgment\" as used in §1252(a)(2)(B)(i).  In support of the judgment below, Courtappointed amicus defines it as any authoritative decision—encompassing any and all decisions relating to the granting or denying of discretionary relief.  By contrast, the Government argues that it refers exclusively to a decision requiring the use of discretion, which the factual findings in this case are not. Patel agrees that \"judgment\" implies an exercise of discretion but interprets the qualifying phrase \"regarding the granting of relief\" as focusing the jurisdictional bar on only the Immigration Judge’s ultimate decision whether to grant relief.  Everything else, he says, is reviewable.  Pp. 6–14. (1) Only amicus’ definition fits the text and context of §1252(a)(2)(B)(i).  \" [T]he word ‘any’ has an expansive meaning.\" Babb v. Wilkie, 589 U. S. ___, ___, n. 2 (some internal quotation marks omitted). As applied here, \"any\" means a judgment \" ‘of whatever kind’ \" under §1255 and the other enumerated provisions.  United States v. Gonzales, 520 U. S. 1, 5.  The word \"regarding\" has a similarly \"broadening effect.\"  Lamar, Archer & Cofrin, LLP v. Appling, 584 U. S. ___, ___. Thus, §1252(a)(2)(B)(i) encompasses not just \"the granting of relief\" but also any judgment relating to the granting of relief. Amicus’ reading is reinforced by Congress’ later addition of §1252(a)(2)(D), which preserves review of legal and constitutional questions but makes no mention of preserving review of questions of fact.  Moreover, this Court has already relied on subparagraph (D) to all but settle that judicial review of factfinding is unavailable. See Guerrero-Lasprilla v. Barr, 589 U. S. ___; Nasrallah v. Barr, 590 U. S. ___ (2020).  Pp. 8–10. (2) The Government’s and Patel’s interpretations read like elaborate efforts to avoid the text’s most natural meaning.  The Government cites dictionary definitions such as \"the mental or intellectual process of forming an opinion or evaluation by discerning and comparing\" as indicating that \"judgment\" refers exclusively to a discretionary decision, which it describes as one that is \"subjective or evaluative.\"  Brief for Respondent 12. The factual findings in this case, it says, do not fit that description.  The Government is wrong about both text and context.  A \"judgment\" does not necessarily involve discretion, nor does context indicate that only discretionary judgments are covered by §1252(a)(2)(B)(i).  Rather than delineating a special category of discretionary determinations, the cited definitions—none of which expressly references discretion—simply describe the decisionmaking process, which might involve a matter that the Government treats as \"subjective\" or one that it deems \"objective.\"  Using the word \"judgment\" to describe the fact determinations at issue in this case is perfectly natural. See, e.g., Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U. S. 318, 327. To succeed, the Government must show that in context, the kind of judgment to which §1252(a)(2)(B)(i) refers is discretionary. But the text of that provision applies to \"any judgment.\" Had Congress intended to limit the jurisdictional bar to \"discretionary judgments,\" it could easily have used that language, as it did elsewhere in the immigration code.  The Government’s reliance on Kucana v. Holder, 558 U. S. 233, is inapposite.  That case said or implied nothing about review of nondiscretionary decisions.  Pp. 10–13. (3) Neither does Patel’s interpretation square with the text or context of §1252(a)(2)(B)(i).  He claims that the phrase \"any judgment regarding the granting of relief\" refers only to the ultimate grant or denial of relief, leaving all eligibility determinations reviewable.  Patel’s interpretation reads \"regarding\" out of the statute entirely.  Patel also fails to explain why subparagraph (B)’s bar should be read differently from subparagraph (C)’s prohibition on reviewing final orders of removal for certain criminal offenses.  Given the similarities of those two provisions—each precludes judicial review in the same way and bears the same relationship to subparagraph (D)—there is no reason to think that subparagraph (B) would allow a court to review the factual underpinnings of a decision when subparagraph (C) prohibits just that. Pp. 13–14. (b) Patel and the Government object that this Court’s interpretation would arbitrarily prohibit review of some factual determinations made in the discretionary-relief context that would be reviewable if made elsewhere in removal proceedings. But the distinction simply reflects Congress’ choice to provide reduced procedural protection for discretionary relief. And while this Court does not decide what effect, if any, its decision has on review of discretionary-relief determinations made outside of removal proceedings, the Court rejects Patel’s and the Government’s contention that the risk of foreclosing such review should change its interpretation here. As the Court has emphasized many times before, policy concerns cannot trump the best interpretation of the statutory text.  Pp. 15–17. (c) As a last resort, Patel and the Government argue that the statute is ambiguous enough to trigger the presumption that Congress did not intend to foreclose judicial review.  Here, however, the text and context of §1252(a)(2)(B)(i) clearly indicate that judicial review of fact determinations is precluded in the discretionary-relief context, and the Court has no reason to resort to the presumption of reviewability.  P. 17.", "opinion": "Congress has comprehensively detailed the rules by which noncitizens may enter and live in the United States. When noncitizens violate those rules, Congress has provided procedures for their removal. At the same time, there is room for mercy: Congress has given the Attorney General power to grant relief from removal in certain circumstances. Federal courts have a very limited role to play in this process. With an exception for legal and constitutional questions, Congress has barred judicial review of the Attorney General’s decisions denying discretionary relief from removal. We must decide how far this bar extends—specifically, whether it precludes judicial review of factual findings that underlie a denial of relief. It does. I A A noncitizen who enters the United States illegally or who otherwise violates its laws may be removed from the country. 8 U. S. C. §§1182, 1227, 1229a. Removal proceedings are conducted by immigration judges in the United States Department of Justice who exercise the authority of the Attorney General. §1229a(a)(1); 8 CFR §§1240.1(a)(1), 1245.2(a)(1)(i) (2021). If an immigration judge decides that a noncitizen is removable, the judge is authorized to order the removal of the noncitizen from the United States. 8 U. S. C. §1229a(c)(5). Being found removable is not always the end of the story, though, because Congress has authorized relief from removal in certain contexts. For example, the Attorney General has discretion to adjust the status of an eligible noncitizen who entered the United States illegally to that of lawful permanent resident, forgiving the illegal entry and protecting the noncitizen from removal on that ground. See §1255(i). (As with authority over removal generally, the Attorney General has delegated to immigration judges the ability to grant relief from removal. 8 CFR §1240.1(a)(1)(ii).) To be eligible for such relief, a noncitizen must show that he satisfies various threshold requirements established by Congress. Yet eligibility only gets a noncitizen so far. Because relief from removal is always \"‘a matter of grace,’\" even an eligible noncitizen must persuade the immigration judge that he merits a favorable exercise of discretion. INS v. St. Cyr, 533 U. S. 289, 308 (2001). And if the judge decides that denial would be appropriate regardless of eligibility, the judge need not address eligibility at all. See INS v. Bagamasbad, 429 U. S. 24, 25–26 (1976) (per curiam). Congress has sharply circumscribed judicial review of the discretionary-relief process. Title 8 U. S. C. §1252(a)(2)(B) provides: \"Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in sub-paragraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review— \"(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.\" This bar has an important qualification: \"Nothing in subparagraph (B) . . . shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.\" §1252(a)(2)(D). Notably, this qualification does not preserve review of questions of fact. B Pankajkumar Patel and his wife Jyotsnaben entered the United States illegally in the 1990s. In 2007, Patel applied to United States Citizenship and Immigration Services (USCIS) (a component of the Department of Homeland Security (DHS)) for adjustment of status under §1255(i). See 8 CFR §245.2(a)(1) (giving USCIS authority over applications for adjustment of status made outside of removal proceedings). If granted, this adjustment would have excused Patel’s illegal entry and made him a lawful permanent resident. (Patel’s wife, the other petitioner in this case, applied for derivative adjustment of status based on Patel’s application.) While his request to USCIS was pending, Patel also applied for a Georgia driver’s license. On that application, he checked a box falsely stating that he was a United States citizen. USCIS denied Patel’s application for adjustment of status because of that misrepresentation. One of the eligibility requirements for adjustment is that the noncitizen be statutorily admissible for permanent residence. 8 U. S. C. §1255(i)(2)(A). USCIS decided that Patel failed to satisfy this requirement. Section 1182(a)(6)(C)(ii)(I) renders inadmissible an \"alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under\" state or federal law. The Board of Immigration Appeals (BIA) has interpreted this provision to apply when a noncitizen (1) makes a false representation of citizenship (2) that is material to a purpose or benefit under the law (3) with the subjective intent of obtaining the purpose or benefit. Matter of Richmond, 26 I. & N. Dec. 779, 786–787 (2016). Applying this test, USCIS concluded that Patel had violated §1182(a)(6)(C)(ii)(I) and was therefore ineligible for status adjustment. Several years later, DHS initiated removal proceedings against the Patels because they were present in the United States without having been admitted—the same illegal entry that Patel had sought to remedy in his initial application for adjustment of status. See §1182(a)(6)(A)(i). Patel conceded that he was removable on that ground but sought relief from removal by repeating his request for discretionary adjustment to lawful permanent resident status. Now before an Immigration Judge, Patel’s request for relief raised the same question that had been at issue in his application before USCIS: whether the misrepresentation of citizenship on his driver’s license application rendered him ineligible for discretionary adjustment. He conceded that he had checked the \"citizen\" box on that application. But he argued that he had done so by accident—and therefore without the subjective intent that the BIA has interpreted §1182(a)(6)(C)(ii)(I) to require. The Immigration Judge concluded otherwise. The judge explained that Patel was evasive when asked exactly how he had made a mistake. And though Patel testified that he had provided his alien registration number on his application, which would have identified him as a noncitizen, the actual application showed that he had not. The judge also noted that Patel had falsely represented his manner of entry into the United States on an application for asylum. Based on this evidence, the judge found that Patel’s testimony was not credible and that he had intentionally represented that he was a citizen. The judge accordingly denied Patel’s application for adjustment of status and ordered that he and his wife be removed from the United States. Patel appealed the decision to the BIA, which determined that the judge’s factual findings were not clearly erroneous and dismissed the appeal. Patel petitioned the Eleventh Circuit for review, arguing that any reasonable judge would have been \"compelled to conclude\" that his testimony was credible and that he had made an honest mistake on the form. See §1252(b)(4)(B) (\"[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary\"). A panel of that court held that it lacked jurisdiction to consider Patel’s claim because federal law prohibits judicial review of \"any judgment regarding the granting of relief \" under §1255, the adjustment-of-status provision. §1252(a)(2)(B)(i). And the factual determinations of which Patel sought review—whether he had testified credibly and whether he had subjectively intended to misrepresent himself as a citizen—each qualified, in the panel’s view, as a \"judgment regarding the granting of relief.\" See Patel v. United States Atty. Gen., 917 F. 3d 1319, 1327 (2019). On rehearing en banc, both Patel and the Government argued that the panel had erred. Patel contended that the bar on judicial review applied only to the ultimate decision to grant or deny adjustment of status—not to any subsidiary decisions regarding an applicant’s eligibility to be considered for relief. The Government argued that the bar applied not only to the ultimate decision to grant or deny relief but also to any discretionary determinations made at the eligibility stage. And in the Government’s view, the Immigration Judge’s factual findings were \"nondiscretionary\" determinations to which the bar did not apply. A majority of the full Eleventh Circuit agreed with the panel decision and held that all factual determinations made as part of considering a request for discretionary relief fall within §1252(a)(2)(B)(i)’s prohibition on judicial review. Patel v. United States Atty. Gen., 971 F. 3d 1258, 1272–1273 (2020). In reaching this conclusion, the Eleventh Circuit deepened a split among the courts of appeals as to the scope of §1252(a)(2)(B)(i).1 We granted certiorari to resolve the conflict. 594 U. S. ___ (2021). Because the Government has continued to take the position that §1252(a)(2)(B)(i) does not prohibit review of the fact determinations at issue, we invited Taylor A. R. Meehan to brief and argue this case, as amicus curiae, in support of the judgment below. 594 U. S. ___ (2021). She has ably discharged her responsibilities. II Section 1252(a)(2)(B)(i) strips courts of jurisdiction to review \"any judgment regarding the granting of relief \" under §1255. The outcome of this case largely turns on the scope of the word \"judgment,\" an issue on which the parties and amicus have three competing views. Amicus maintains that \"judgment\" means any authoritative decision. See Webster’s Third New International Dictionary 1223 (1993) (\"a formal utterance or pronouncing of an authoritative opinion after judging,\" or \"an opinion so pronounced\"); 8 Oxford English Dictionary 294 (2d ed. 1989) (\"[t]he pronouncing of a deliberate opinion upon a person or thing, or the opinion pronounced\"). Under this broad definition, §1252(a)(2)(B)(i)’s prohibition \"encompasses any and all decisions relating to the granting or denying\" of discretionary relief. Brief for Court-Appointed Amicus Curiae 22–23. Factual findings fall within this category, amicus says, so the courts lack jurisdiction to review them. The Government argues that, at least when used outside the context of a final judgment of a court, \"judgment\" does not refer to just any decision. According to the Government, §1252(a)(2)(B)(i)’s use of \"judgment\" refers exclusively to a decision that requires the use of discretion. Brief for Respondent 16–18. On this approach, some eligibility determinations are reviewable and others are not. For example, the determination that a noncitizen’s removal would not result in exceptional and extremely unusual hardship for a spouse, parent, or child involves discretion (which makes it an unreviewable \"judgment\"), but the decision that an applicant has fewer than 10 years of continuous presence in the United States does not (which makes it reviewable). See id., at 42 (citing 971 F. 3d, at 1296 (Martin, J., dissenting)); but see Trejo v. Garland, 3 F. 4th 760 (CA5 2021) (concluding to the contrary that hardship is nondiscretionary and so reviewable); Singh v. Rosen, 984 F. 3d 1142 (CA6 2021) (same). The Government classifies the factual findings at issue in this case—the Immigration Judge’s conclusions that Patel’s testimony was not credible and that he had lied on the form—as nondiscretionary and therefore outside the jurisdictional bar. Patel agrees with the Government that \"judgment\" implies an exercise of discretion, but unlike the Government, he would not sift through eligibility determinations to classify them as discretionary or nondiscretionary. Instead, Patel reads the phrase \"regarding the granting of relief \" to focus the jurisdictional bar narrowly on a single discretionary judgment: the immigration judge’s decision whether to grant relief to an applicant eligible to receive it. Everything else, Patel says, is reviewable. JUSTICE GORSUCH adopts Patel’s approach, rejecting the Government’s interpretation as well as amicus’. See post, at 8 (dissenting opinion). A Amicus’ interpretation is the only one that fits §1252(a)(2)(B)(i)’s text and context. The provision does not restrict itself to certain kinds of decisions. Rather, it prohibits review of any judgment regarding the granting of relief under §1255 and the other enumerated provisions. As this Court has \"repeatedly explained,\" \"‘\"the word ‘any’ has an expansive meaning.\"’\" Babb v. Wilkie, 589 U. S. ___, ___, n. 2 (2020) (slip op., at 5, n. 2); see also Webster’s Third New International Dictionary, at 97 (defining \"any\" as \"one or some indiscriminately of whatever kind\"). Here, \"any\" means that the provision applies to judgments \"‘of whatever kind’\" under §1255, not just discretionary judgments or the last-in-time judgment. See United States v. Gonzales, 520 U. S. 1, 5 (1997). Similarly, the use of \"regarding\" \"in a legal context generally has a broadening effect, ensuring that the scope of a provision covers not only its subject but also matters relating to that subject.\" Lamar, Archer & Cofrin, LLP v. Appling, 584 U. S. ___, ___ (2018) (slip op., at 7); see also Webster’s Third New International Dictionary, at 1911 (defining \"regarding\" as \"with respect to\" or \"concerning\"). Thus, §1252(a)(2)(B)(i) encompasses not just \"the granting of relief \" but also any judgment relating to the granting of relief. That plainly includes factual findings. Section 1252(a)(2)(D), which preserves review of constitutional claims and questions of law, reinforces that conclusion. Congress added this subparagraph after we suggested in St. Cyr that barring review of all legal questions in removal cases could raise a constitutional concern. See 533 U. S., at 300, 314. The amendment is precise. While Congress could have responded to St. Cyr by lifting §1252’s prohibitions on judicial review altogether, it instead excised only the legal and constitutional questions that implicated our concern. See §1252(a)(2)(D) (\"Nothing in subparagraph (B) or (C)\" or other similar provisions \"shall be construed as precluding review of constitutional claims or questions of law\"); §§1252(a)(2)(B), (C) (continuing to prohibit review \"except as provided in subparagraph (D)\"). And if Congress made such questions an exception, it must have left something within the rule. The major remaining category is questions of fact. No surprise, then, that we have already relied on subparagraph (D) to all but settle that judicial review of factfinding is unavailable. In Guerrero-Lasprilla v. Barr, 589 U. S. ___ (2020), we had to decide whether subparagraph (C)— which bars review of \"any final order of removal against an alien who is removable by reason of having committed\" certain criminal offenses—prohibits review of how a legal standard applies to undisputed facts. Our answer turned on whether such an application counts as a question of law 10  for purposes of subparagraph (D). Id., at ___–___ (slip op., at 3–4). In holding that it does, we explained that subparagraph (D) \"will still forbid appeals of factual determinations\" themselves under subparagraph (C). Id., at ___–___ (slip op., at 12–13). Had we thought otherwise, we would simply have said that questions of fact, like questions of law, are reviewable—end of story. Nasrallah v. Barr, 590 U. S. ___ (2020), addresses Patel’s situation even more directly. There, we held that a court has jurisdiction to review a factual challenge to an order denying relief under the Convention Against Torture, because that order falls outside of subparagraph (C)’s prohibition on reviewing final orders of removal. In reaching that conclusion, we emphasized that our decision would have \"no effect\" on those orders that do fall within a jurisdiction-stripping provision—including \"orders denying discretionary relief\" under §1252(a)(2)(B). Id., at ___ (slip op., at 12). And so, we explained, a noncitizen \"may not bring a factual challenge to orders denying discretionary relief, including . . . adjustment of status.\" Ibid. We adhere to that view today. B In contrast to amicus’ straightforward interpretation, both the Government’s and Patel’s arguments read like elaborate efforts to avoid the most natural meaning of the text. 1 We begin with the Government’s argument that \"judgment\" refers exclusively to a \"discretionary\" decision, which the Government describes as a decision that is \"subjective or evaluative.\" Brief for Respondent 12. According to the Government, this requirement is evident in definitions like this one: \"‘the mental or intellectual process of forming an opinion or evaluation by discerning and comparing,’\" or an opinion or estimate so formed.’\" Id., at 16–17 (quoting Webster’s Third New International Dictionary, at 1223). The Government’s argument is subtle, to say the least, given that none of the definitions it cites expressly references discretion. Evidently, the nature of the decisionmaking process does the work: If the process occurs as the definitions describe, then the decision it yields is discretionary and counts as a judgment. And the Government says that the factual findings in this case do not fit that description. We do not see how the Government’s cited definitions narrow the field in the way that the Government claims. Rather than delineating a special category of discretionary determinations, they simply describe the decisionmaking process. That process might involve a matter that the Government treats as \"subjective\" or one that it deems \"objective.\" Either counts as a judgment, even under the definitions that the Government offers. Take the credibility determination at issue in this case. It is easily described as an \"opinion or evaluation\" formed \"by discerning and comparing\" the evidence presented. The Immigration Judge weighed Patel’s testimony, reviewed documents, and considered Patel’s history to conclude that he was an evasive and untrustworthy witness. Using the word \"judgment\" to describe that kind of credibility determination is perfectly natural—in fact, we have used it this way ourselves. See, e.g., Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U. S. 318, 327 (2015) (discussing \"‘credibility judgments’\" about a witness). It is just as natural in other factfinding contexts, like the Immigration Judge’s determination that Patel lied on his driver’s license application. Finding that fact involved the same exercise of evaluating conflicting evidence to make a judgment about what happened. So to succeed, the Government must do more than point to the word \"judgment.\" It must show that in context, the 12  kind of judgment to which §1252(a)(2)(B)(i) refers is discretionary. But the text of the provision stops that argument in its tracks because the bar on review applies to \"any judgment.\" Had Congress intended instead to limit the jurisdictional bar to \"discretionary judgments,\" it could easily have used that language—as it did elsewhere in the immigration code. See, e.g., §1226(e) (\"The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review\" (emphasis added)); §1252(b)(4)(D) (\"[T]he Attorney General’s discretionary judgment whether to grant relief under section 1158(a) of this title shall be conclusive unless manifestly contrary to the law and an abuse of discretion\" (emphasis added)). We express no view about what \"discretionary judgment\" means in those provisions—the point is simply that the absence of any reference to discretion in §1252(a)(2)(B)(i) undercuts the Government’s efforts to read it in. The Government claims that Kucana v. Holder, 558 U. S. 233 (2010), which interpreted neighboring provision §1252(a)(2)(B)(ii), supports its argument. That provision bars review of \"any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.\" We explained in Kucana that \"[t]he proximity of clauses (i) and (ii), and the words linking them—‘any other decision’— sugges[t] that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation.\" Id., at 246–247. \"Read harmoniously,\" we said, \"both clauses convey that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute.\" Id., at 247. This reference to barring review of discretionary decisions, the Government says, implies that review of nondiscretionary decisions is allowed. Kucana’s discussion is inapposite. That opinion addressed whether the Attorney General could unilaterally proscribe review of decisions \"declared discretionary by the Attorney General himself through regulation.\" Id., at 237. In drawing the comparison between clauses (i) and (ii), we thus focused on the fact that each form of relief identified in clause (i) was entrusted to the Attorney General’s discretion by statute. Id., at 246. We neither said nor implied anything about review of eligibility decisions made in the course of exercising that statutory discretion. In short, the Government is wrong about both text and context. A \"judgment\" does not necessarily involve discretion, nor does context indicate that only discretionary judgments are covered by §1252(a)(2)(B)(i). 2 Unlike the Government, Patel interprets §1252(a)(2)(B)(i) to prohibit review of only the ultimate grant or denial of relief, leaving all eligibility determinations reviewable. That, Patel says, is because the provision specifies the kind of judgment to which the bar applies: \"any judgment regarding the granting of relief.\" Eligibility determinations—which Patel characterizes as \"first-step decisions\"—are not judgments regarding the granting of relief because eligibility is a necessary but insufficient condition for relief. The only judgment that can actually grant relief is what Patel describes as the \"second-step decision\" whether to grant the applicant the \"‘\"grace\" ’\" of relief from removal. Brief for Petitioners 20 (quoting St. Cyr, 533 U. S., at 308). So, Patel argues, that is the sole judgment to which the bar applies. Like the Government, Patel cannot square his interpretation with the text of §1252(a)(2)(B)(i). He claims that his is the only interpretation that makes sense of \"regarding the granting of relief \"; as he sees it, \"any judgment regarding the granting of relief \" must narrow the meaning of \"judgment\" to include only the decision \"whether to grant relief.\" Brief for Petitioners 22–25, 37–39. To be sure, the reference to \"the granting of relief \" appears to constrain the provision from sweeping in judgments that have nothing to do with that subject. But as even the Government acknowledges, §1252(a)(2)(B)(i) does not stop at just the grant or denial of relief; it extends to any judgment \"regarding\" that ultimate decision. See Brief for Respondent 18–20. Patel’s interpretation to the contrary reads \"regarding\" out of the statute entirely. Context further undermines Patel’s position. He cannot explain why the bar in subparagraph (B) should be read differently from subparagraph (C)’s prohibition on reviewing final orders of removal for certain criminal offenses. Patel acknowledges that this bar on review of a \"final order\" also precludes review of its factual support, including the very kind of factfinding at issue in this case. Reply Brief for Petitioners 7; Guerrero-Lasprilla, 589 U. S., at ___–___ (slip op., at 12–13). But if Congress had wanted to achieve that effect in subparagraph (B), he argues, it could have used \"final order\" there too, rather than \"judgment.\" Reply Brief for Petitioners 7. Yet Patel ignores a simple explanation for the shift in terminology. Subparagraph (B) bars review of only one facet of the removal process (consideration of discretionary relief) whereas subparagraph (C) prohibits review of the entire proceeding (removal based on a criminal offense). Each statutory label describes its target, but otherwise, the provisions preclude judicial review in the same way and bear the same relationship to subparagraph (D). Given those similarities, we see no reason to think that subparagraph (B) would allow a court to review the factual underpinnings of a decision when subparagraph (C) prohibits just that. Patel and the Government object that our interpretation of §1252(a)(2)(B)(i) would arbitrarily prohibit review of some factual determinations made in the discretionary-relief context that would be reviewable if made elsewhere in removal proceedings. In this case, for example, the question whether Patel intended to falsely claim to be a citizen on his driver’s license application relates to whether he is statutorily inadmissible, which is both an obstacle to discretionary relief and an independent ground for removal. Presumably because Patel openly acknowledged that he was removable for entering the country illegally, the Government did not premise his removal on the contested claim that he had intentionally misrepresented his citizenship. But if the Government had taken that route, the Immigration Judge’s determinations would have been reviewable in the ordinary course. That distinction is not arbitrary. It reflects Congress’ choice to provide reduced procedural protection for discretionary relief, the granting of which is \"‘not a matter of right under any circumstances, but rather is in all cases a matter of grace.’\" St. Cyr, 533 U. S., at 308. That reduced protection is reflected in the burden of proof too: The Government bears the burden of proving removability by clear and convincing evidence, while an applicant bears the burden of establishing eligibility for discretionary relief. Compare §1229a(c)(3)(A) with §1229a(c)(4)(A). For both judicial review and the burden of proof, the context in which a fact is found explains the difference in protection afforded. Patel and the Government also briefly suggest that interpreting §1252(a)(2)(B)(i) as we do will have the unintended consequence of precluding all review of USCIS denials of discretionary relief. Those decisions are made outside of the removal context, and subparagraph (D) preserves review of legal and constitutional questions only when raised in a petition for review of a final order of removal. If the 16  jurisdictional bar is broad and subparagraph (D) is inapplicable, Patel and the Government say, USCIS decisions will be wholly insulated from judicial review. The reviewability of such decisions is not before us, and we do not decide it. But it is possible that Congress did, in fact, intend to close that door. The post-St. Cyr amendments expressly extended the jurisdictional bar to judgments made outside of removal proceedings at the same time that they preserved review of legal and constitutional questions made within removal proceedings. See §§1252(a)(2)(B), (D). And foreclosing judicial review unless and until removal proceedings are initiated would be consistent with Congress’ choice to reduce procedural protections in the context of discretionary relief. See Lee v. USCIS, 592 F. 3d 612, 620 (CA4 2010) (\"To the extent Congress decided to permit judicial review of a constitutional or legal issue bearing upon the denial of adjustment of status, it intended for the issue to be raised to the court of appeals during removal proceedings\"). So it would be difficult to maintain that this consequence conflicts with the statutory structure, and neither Patel nor the Government goes so far. Instead, they urge us to interpret §1252(a)(2)(B)(i) to avoid the risk of this result. Yet we inevitably swerve out of our lane when we put policy considerations in the driver’s seat. As we have emphasized many times before, policy concerns cannot trump the best interpretation of the statutory text. See, e.g., Niz-Chavez v. Garland, 593 U. S. ___, ___ (2021) (slip op., at 15); Jay v. Boyd, 351 U. S. 345, 357 (1956). As a last resort, Patel and the Government insist that the statute is ambiguous enough to trigger the presumption that Congress did not intend to foreclose judicial review. We disagree. Because \"‘executive determinations generally are subject to judicial review,’\" Guerrero-Lasprilla, 589 U. S., at ___ (slip op., at 6), we presume that review is available when a statute is silent. See Reno v. Catholic Social Services, Inc., 509 U. S. 43, 56 (1993). But that presumption \"may be overcome by specific language\" in a provision or evidence \"drawn from the statutory scheme as a whole.\" Block v. Community Nutrition Institute, 467 U. S. 340, 349 (1984). And as we have explained in detail, the text and context of §1252(a)(2)(B)(i)—which is, after all, a jurisdiction-stripping statute—clearly indicate that judicial review of fact determinations is precluded in the discretionary-relief context. The plain meaning of that provision, not any interpretative presumption, drives our conclusion today. Because the statute is clear, we have no reason to resort to the presumption of reviewability. Federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings under §1255 and the other provisions enumerated in §1252(a)(2)(B)(i). We therefore affirm the judgment of the Court of Appeals."},
{"docket_number": "20-1800", "syllabus": "Just outside the entrance to Boston City Hall, on City Hall Plaza, stand three flagpoles. Boston flies the American flag from the first pole and the flag of the Commonwealth of Massachusetts from the second. Boston usually flies the city’s own flag from the third pole. But Boston has, for years, allowed groups to hold ceremonies on the plaza during which participants may hoist a flag of their choosing on the third pole in place of the city’s flag. Between 2005 and 2017, Boston approved the raising of about 50 unique flags for 284 such ceremonies. Most of these flags were other countries’, but some were associated with groups or causes, such as the Pride Flag, a banner honoring emergency medical service workers, and others. In 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community; as part of that ceremony, he wished to raise what he described as the \"Christian flag.\" The commissioner of Boston’s Property Management Department worried that flying a religious flag at City Hall could violate the Establishment Clause and found no past instance of the city’s having raised such a flag. He therefore told Shurtleff that the group could hold an event on the plaza but could not raise their flag during it. Shurtleff and Camp Constitution (petitioners) sued, claiming that Boston’s refusal to let them raise their flag violated, among other things, the First Amendment’s Free Speech Clause. The District Court held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, so Boston could refuse petitioners’ request without running afoul of the First Amendment. The First Circuit affirmed. This Court granted certiorari to decide whether the flags Boston allows others to fly express government speech, and whether Boston could, consistent with the Free Speech Clause, deny petitioners’ flag-raising request. Held: 1. Boston’s flag-raising program does not express government speech. Pp. 5–12. (a) The Free Speech Clause does not prevent the government from declining to express a view. See Pleasant Grove City v. Summum, 555 U. S. 460, 467–469. The government must be able to decide what to say and what not to say when it states an opinion, speaks for the community, formulates policies, or implements programs. The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In those situations, the Court conducts a holistic inquiry to determine whether the government intends to speak for itself or, rather, to regulate private expression. The Court’s cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression. See Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. 200, 209–213. Considering these indicia in Summum, the Court held that the messages of permanent monuments in a public park constituted government speech, even when the monuments were privately funded and donated. See 555 U. S., at 470–473. In Walker, the Court found that license plate designs proposed by private groups also amounted to government speech because, among other reasons, the State that issued the plates \"maintain[ed] direct control over the messages conveyed\" by \"actively\" reviewing designs and rejecting over a dozen proposals. 576 U. S., at 213. On the other hand, in Matal v. Tam, the Court concluded that trademarking words or symbols generated by private registrants did not amount to government speech because the Patent and Trademark Office did not exercise sufficient control over the nature and content of those marks to convey a governmental message. 582 U. S.___, ___. Pp. 5–6. (b) Applying this government-speech analysis here, the Court finds that some evidence favors Boston, and other evidence favors Shurtleff. The history of flag flying, particularly at the seat of government, supports Boston. Flags evolved as a way to symbolize communities and governments. Not just the content of a flag, but also its presence and position have long conveyed important messages about government. Flying a flag other than a government’s own can also convey a governmental message. For example, another country’s flag outside Blair House, across the street from the White House, signals that a foreign leader is visiting. Consistent with this history, flags on Boston’s City Hall Plaza usually convey the city’s messages. Boston’s flag symbolizes the city and, when flying at halfstaff, conveys a community message of sympathy or somber remembrance. The question remains whether, on the 20 or so times a year when Boston allowed private groups to raise their own flags, those flags, too, expressed the city’s message. The circumstantial evidence of the public’s perception does not resolve the issue. The most salient feature of this case is that Boston neither actively controlled these flag raisings nor shaped the messages the flags sent. To be sure, Boston maintained control over an event’s date and time to avoid conflicts, and it maintained control over the plaza’s physical premises, presumably to avoid chaos. But the key issue is whether Boston shaped or controlled the flags’ content and meaning; such evidence would tend to show that Boston intended to convey the flags’ messages as its own. And on that issue, Boston’s record is thin. Boston says that all (or at least most) of the 50 unique flags it approved reflect particular city-endorsed values or causes. That may well be true of flying other nations’ flags, or the Pride Flag raised annually to commemorate Boston Pride Week, but the connection to other flag-raising ceremonies, such as one held by a community bank, is more difficult to discern. Further, Boston told the public that it sought \"to accommodate all applicants\" who wished to hold events at Boston’s \"public forums,\" including on City Hall Plaza. App. to Pet. for Cert. 137a. The city’s application form asked only for contact information and a brief description of the event, with proposed dates and times. The city employee who handled applications testified that he did not request to see flags before the events. Indeed, the city’s practice was to approve flag raisings without exception—that is, until petitioners’ request. At the time, Boston had no written policies or clear internal guidance about what flags groups could fly and what those flags would communicate. Boston’s control is therefore not comparable to the degree of government involvement in the selection of park monuments in Summum, see 555 U. S., at 472–473, or license plate designs in Walker, see 576 U. S., at 213. Boston’s come-one-come-all practice— except, that is, for petitioners’ flag—is much closer to the Patent and Trademark Office’s policy of registering all manner of trademarks in Matal, see 582 U. S., at ___, ___. All told, Boston’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government, speech. Pp. 6–12. 2. Because the flag-raising program did not express government speech, Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment. When the government does not speak for itself, it may not exclude private speech based on \"religious viewpoint\"; doing so \"constitutes impermissible viewpoint discrimination.\" Good News Club v. Milford Central School, 533 U. S. 98, 112. Boston concedes that it denied petitioners’ request out of Establishment Clause concerns, solely because the proposed flag \"promot[ed] a specific religion.\" App. to Pet. for Cert. 155a. In light of the Court’s government-speech holding, Boston’s refusal to allow petitioners to raise their flag because of its religious viewpoint violated the Free Speech Clause. Pp. 12–13.", "opinion": "When the government encourages diverse expression— say, by creating a forum for debate—the First Amendment prevents it from discriminating against speakers based on their viewpoint. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828–830 (1995). But when the government speaks for itself, the First Amendment does not demand airtime for all views. After all, the government must be able to \"promote a program\" or \"espouse a policy\" in order to function. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. 200, 208 (2015). The line between a forum for private expression and the government’s own speech is important, but not always clear. This case concerns a flagpole outside Boston City Hall. For years, Boston has allowed private groups to request use of the flagpole to raise flags of their choosing. As part of this program, Boston approved hundreds of requests to raise dozens of different flags. The city did not deny a single request to raise a flag until, in 2017, Harold Shurtleff, the director of a group called Camp Constitution, asked to fly a Christian flag. Boston refused. At that time, Boston admits, it had no written policy limiting use of the flagpole based on the content of a flag. The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views. If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause. If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint. We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint \"abridg[ed]\" their \"freedom of speech.\" U. S. Const., Amdt. I. I A The flagpole at issue stands at the entrance of Boston City Hall. See Appendix, infra. Built in the late 1960s, Boston City Hall is a raw concrete structure, an example of the brutalist style. Critics of the day heralded it as a public building that \"articulates its functions\" with \"strength, dignity, grace, and even glamor.\" J. Conti, A New City Hall: Boston’s Boost for Urban Renewal, Wall Street Journal, Feb. 12, 1969, p. 14. (The design has since proved somewhat more controversial. See, e.g., E. Mason, Boston City Hall Named World’s Ugliest Building, Boston Herald (Nov. 15, 2008), https://www.bostonherald.com/2008/11/15/ boston-city-hall-named-worlds-ugliest-building.) More to the point, Boston City Hall sits on City Hall Plaza, a 7-acre expanse paved with New England brick. Inspired by open public spaces like the Piazza del Campo in Siena, the plaza was designed to be \"‘Boston’s fairground,’\" a \"public gathering spac[e]\" for the people. N. DeCosta-Klipa, Why Is Boston City Hall the Way It Is? Boston.com (July 25, 2018), https://www.boston.com/news/history/2018/07/ 25/bostoncity-hall-brutalism. On the plaza, near City Hall’s entrance, stand three 83- foot flagpoles. Boston flies the American flag from the first pole (along with a banner honoring prisoners of war and soldiers missing in action). From the second, it flies the flag of the Commonwealth of Massachusetts. And from the third, it usually (but not always) flies Boston’s flag—a sketch of the \"City on a Hill\" encircled by a ring against a blue backdrop. Boston makes City Hall Plaza available to the public for events. Boston acknowledges that this means the plaza is a \"public forum.\" Brief for Respondents 27. The city’s policy is, \"[w]here possible,\" \"to accommodate all applicants seeking to take advantage of the City of Boston’s public forums,\" including the plaza and the area at the flagpoles’ base. App. to Pet. for Cert. 133a, 137a. For years, since at least 2005, the city has allowed groups to hold flag-raising ceremonies on the plaza. Participants may hoist a flag of their choosing on the third flagpole (in place of the city’s flag) and fly it for the duration of the event, typically a couple of hours. Most ceremonies have involved the flags of other countries—from Albania to Venezuela—marking the national holidays of Bostonians’ many countries of origin. But several flag raisings have been associated with other kinds of groups or causes, such as Pride Week, emergency medical service workers, and a community bank. All told, between 2005 and 2017, Boston approved about 50 unique flags, raised at 284 ceremonies. Boston has no record of refusing a request before the events that gave rise to this case. We turn now to those events. B In July 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold a flag-raising event that September on City Hall Plaza. The event would \"commemorate the civic and social contributions of the Christian community\" and feature remarks by local clergy. Id., at 130a–131a. As part of the ceremony, the organization wished to raise what it described as the \"Christian flag.\" Id., at 131a. To the event application, Shurtleff attached a photo of the proposed flag: a red cross on a blue field against a white background. The commissioner of Boston’s Property Management Department said no. The problem was \"not the content of the Christian flag,\" but \"the fact that it was the Christian flag or [was] called the Christian flag.\" App. in No. 20–1158 (CA1), at 212–213 (deposition of then-commissioner Gregory T. Rooney, hereafter Rooney deposition). The commissioner worried that flying a religious flag at City Hall could violate the Constitution’s Establishment Clause and found no record of Boston ever having raised such a flag. He told Shurtleff that Camp Constitution could proceed with the event if they would raise a different flag. Needless to say, they did not want to do so. C Shurtleff and Camp Constitution (petitioners) sued Boston and the commissioner of its Property Management Department (respondents). Petitioners claimed that Boston’s refusal to let them raise their flag violated, among other things, the First Amendment’s Free Speech Clause. They asked for an immediate order requiring Boston to allow the flag raising, but the District Court denied the request. See 337 F. Supp. 3d 66 (Mass. 2018), aff ’d, 928 F. 3d 166 (CA1 2019). The parties engaged in discovery. At its close, they filed cross-motions for summary judgment. The parties agreed to all relevant facts and submitted a joint statement setting them out. App. to Pet. for Cert. 128a–160a. On that record, the District Court held that flying private groups’ flags from City Hall’s third pole amounted to government speech. See 2020 WL 555248, *5, ___ F. Supp. 3d ___, ___ (Mass., Feb. 4, 2020). Hence, the city acted within its constitutional authority in declining to raise Camp Constitution’s flag. Id., at *3, *5. The District Court therefore granted summary judgment for Boston. The First Circuit affirmed. See 986 F. 3d 78 (2021). Shurtleff and Camp Constitution next petitioned this Court for certiorari. We agreed to decide whether the flags Boston allows groups to fly express government speech, and whether Boston could, consistent with the Free Speech Clause, deny petitioners’ flag-raising request. II A The first and basic question we must answer is whether Boston’s flag-raising program constitutes government speech. If so, Boston may refuse flags based on viewpoint. The First Amendment’s Free Speech Clause does not prevent the government from declining to express a view. See Pleasant Grove City v. Summum, 555 U. S. 460, 467–469 (2009). When the government wishes to state an opinion, to speak for the community, to formulate policies, or to implement programs, it naturally chooses what to say and what not to say. See Walker, 576 U. S., at 207–208. That must be true for government to work. Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans. The Constitution therefore relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235 (2000). The boundary between government speech and private expression can blur when, as here, a government invites the people to participate in a program. In those situations, when does government-public engagement transmit the government’s own message? And when does it instead create a forum for the expression of private speakers’ views? In answering these questions, we conduct a holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression. Our review is not mechanical; it is driven by a case’s context rather than the rote application of rigid factors. Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression. See Walker, 576 U. S., at 209–214. Considering these indicia in Summum, we held that the messages of permanent monuments in a public park constituted government speech, even when the monuments were privately funded and donated. See 555 U. S., at 470–473. In Walker, we explained that license plate designs proposed by private groups also amounted to government speech because, among other reasons, the State that issued the plates \"maintain[ed] direct control over the messages conveyed\" by \"actively\" reviewing designs and rejecting over a dozen proposals. 576 U. S., at 213. In Matal v. Tam, 582 U. S. ___ (2017), on the other hand, we concluded that trademarking words or symbols generated by private registrants did not amount to government speech. Id., at ___–___ (slip op., at 14–18). Though the Patent and Trademark Office had to approve each proposed mark, it did not exercise sufficient control over the nature and content of those marks to convey a governmental message in so doing. Ibid. These precedents point our way today. B Applying the government-speech analysis to this record, we find that some evidence favors Boston, and other evidence favors Shurtleff. To begin, we look to the history of flag flying, particularly at the seat of government. Were we to consider only that general history, we would find that it supports Boston. Flags are almost as old as human civilization. Indeed, flags symbolize civilization. From the \"primordial rag dipped in the blood of a conquered enemy and lifted high on a stick,\" to the feudal banner bearing a lord’s coats of arms, to the standards of the Aztecs, nearly every society has taken a piece of cloth and \"endow[ed] it, through the circumstances of its display, with a condensed power\" to speak for the community. W. Smith, Flags Through the Ages and Across the World 1–2, 32, 34 (1975). Little wonder that the Continental Congress, seeking to define a new nation, \"[r]esolved\" on June 14, 1777, \"[t]hat the Flag of the . . . United States be thirteen stripes, alternate red and white: that the union be thirteen stars, white in a blue field, representing a new constellation.\" 8 Journals of the Continental Congress 1774–1789, p. 464 (W. Ford ed. 1907). Today, the American flag continues to symbolize our Nation, a constellation of 50 stars standing for the 50 States. Other contemporary flags, both state and local, reflect their communities. Boston’s flag, for instance, bears the city’s seal and motto rendered in blue and buff—the colors of the Continental Army’s Revolutionary War uniforms. See Symbols of the City of Boston, City of Boston (July 16, 2016), https://www.boston.gov/departments/tourism-sportsand-entertainment/symbols-city-boston (Symbols of Boston). Not just the content of a flag, but also its presence and position have long conveyed important messages about government. The early morning sight of the stars and stripes above Fort McHenry told Francis Scott Key (and, through his poem, he told the rest of us) that the great experiment—the land of the free—had survived the British attack on Baltimore Harbor. See C. Lineberry, The Story Behind the Star Spangled Banner, Smithsonian Magazine (Mar. 1, 2007). No less familiar, a flag at halfstaff tells us that the government is paying its \"respect to th[e] memory\" of someone who has died. 4 U. S. C. §7(m). (Congress has explained, across several sections of the U. S. Code, the meaning we should take from the \"position,\" \"manner,\" \"time,\" and \"occasions\" of the American flag’s display. §§6, 7.) And the presence of the Royal Standard flying from Windsor Castle’s Round Tower says the Queen is home. See Windsor Castle Today, Royal Collection Trust, www.rct.uk/visit/ windsor-castle/windsor-castle-today. The flying of a flag other than a government’s own can also convey a governmental message. A foreign flag outside Blair House, across the street from the White House, signals that a foreign leader is visiting and the residence has \"becom[e] a de facto diplomatic mission of the guest’s home nation.\" M. French, United States Protocol: The Guide to Official Diplomatic Etiquette 298 (2010). And, according to international custom, when flags of two or more nations are displayed together, they cannot be flown one nation above the other \"in time of peace.\" 4 U. S. C. §7(g). Keeping with this tradition, flags on Boston’s City Hall Plaza usually convey the city’s messages. On a typical day, the American flag, the Massachusetts flag, and the City of Boston’s flag wave from three flagpoles. Boston’s flag, when flying there at full mast, symbolizes the city. When flying at halfstaff, it conveys a community message of sympathy or somber remembrance. When displayed at other public buildings, it marks the mayor’s presence. See Symbols of Boston. The city also sometimes conveys a message by replacing its flag with another. When Boston’s mayor lost a bet with Montreal’s about whose hockey team would win a playoff series, Boston, duty-bound in defeat, hoisted the Canadiens’ banner. See Tr. of Oral Arg. 54–55. While this history favors Boston, it is only our starting point. The question remains whether, on the 20 or so times a year when Boston allowed private groups to raise their own flags, those flags, too, expressed the city’s message. So we must examine the details of this flag-flying program. Next, then, we consider whether the public would tend to view the speech at issue as the government’s. In this case, the circumstantial evidence does not tip the scale. On an ordinary day, a passerby on Cambridge Street sees three government flags representing the Nation, State, and city. Those flags wave \"in unison, side-by-side, from matching flagpoles,\" just outside \"‘the entrance to Boston’s seat of government.’\" 986 F. 3d, at 88. Like the monuments in the public park in Summum, the flags \"play an important role in defining the identity that [the] city projects to its own residents and to the outside world.\" 555 U. S., at 472. So, like the license plates in Walker, the public seems likely to see the flags as \"‘conveying some message’\" on the government’s \"‘behalf.’\" 576 U. S., at 212 (quoting Summum, 555 U. S., at 471). But as we have said, Boston allowed its flag to be lowered and other flags to be raised with some regularity. These other flags were raised in connection with ceremonies at the flagpoles’ base and remained aloft during the events. Petitioners say that a pedestrian glimpsing a flag other than Boston’s on the third flagpole might simply look down onto the plaza, see a group of private citizens conducting a ceremony without the city’s presence, and associate the new flag with them, not Boston. Thus, even if the public would ordinarily associate a flag’s message with Boston, that is not necessarily true for the flags at issue here. Again, this evidence of the public’s perception does not resolve whether Boston conveyed a city message with these flags. Finally, we look at the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent. The answer, it seems, is not at all. And that is the most salient feature of this case. To be sure, Boston maintained control over an event’s date and time to avoid conflicts. It maintained control over the plaza’s physical premises, presumably to avoid chaos. And it provided a hand crank so that groups could rig and raise their chosen flags. But it is Boston’s control over the flags’ content and meaning that here is key; that type of control would indicate that Boston meant to convey the flags’ messages. On this issue, Boston’s record is thin. Boston says that all (or at least most) of the 50 unique flags it approved reflect particular city-approved values or views. Flying flags associated with other countries celebrated Bostonians’ many different national origins; flying other flags, Boston adds, was not \"wholly unconnected\" from a diversity message or \"some other day or cause the City or Commonwealth had already endorsed.\" Brief for Respondents 8, 35. That may well be true of the Pride Flag raised annually to commemorate Boston Pride Week. See Brief for Commonwealth of Massachusetts et al. as Amici Curiae 25–26 (citing reports that the then-mayor of Boston gave remarks as the Pride Flag was raised). But it is more difficult to discern a connection to the city as to, say, the Metro Credit Union flag raising, a ceremony by a local community bank. In any event, we do not settle this dispute by counting noses—or, rather, counting flags. That is so for several reasons. For one thing, Boston told the public that it sought \"to accommodate all applicants\" who wished to hold events at Boston’s \"public forums,\" including on City Hall Plaza. App. to Pet. for Cert. 137a. The application form asked only for contact information and a brief description of the event, with proposed dates and times. The city employee who handled applications testified by deposition that he had previously \"never requested to review a flag or requested changes to a flag in connection with approval\"; nor did he even see flags before the events. Id., at 150a. The city’s practice was to approve flag raisings, without exception. It has no record of denying a request until Shurtleff ’s. Boston acknowledges it \"hadn’t spent a lot of time really thinking about\" its flag-raising practices until this case. App. in No. 20–1158 (CA1), at 140 (Rooney deposition). True to its word, the city had nothing—no written policies or clear internal guidance—about what flags groups could fly and what those flags would communicate. Compare the extent of Boston’s control over flag raisings with the degree of government involvement in our most relevant precedents. In Summum, we emphasized that Pleasant Grove City always selected which monuments it would place in its park (whether or not the government funded those monuments), and it typically took ownership over them. 555 U. S., at 472–473. In Walker, a state board \"maintain[ed] direct control\" over license plate designs by \"actively\" reviewing every proposal and rejecting at least a dozen. 576 U. S., at 213. Boston has no comparable record. The facts of this case are much closer to Matal v. Tam. There, we held that trademarks were not government speech because the Patent and Trademark Office registered all manner of marks and normally did not consider their viewpoint, except occasionally to turn away marks it deemed \"offensive.\" 582 U. S., at ___, ___ (slip op., at 14, 22). Boston’s come-one-come-all attitude—except, that is, for Camp Constitution’s religious flag—is similar. Boston could easily have done more to make clear it wished to speak for itself by raising flags. Other cities’ flagflying policies support our conclusion. The City of San Jose, California, for example, provides in writing that its \"‘flagpoles are not intended to serve as a forum for free expression by the public,’\" and lists approved flags that may be flown \"‘as an expression of the City’s official sentiments.’\" See Brief for Commonwealth of Massachusetts et al. as Amici Curiae 18. All told, while the historical practice of flag flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward. III Last, we consider whether Boston’s refusal to allow Shurtleff and Camp Constitution to raise their flag amounted to impermissible viewpoint discrimination. Boston acknowledges that it denied Shurtleff ’s request because it believed flying a religious flag at City Hall could violate the Establishment Clause. And it admits this concern proceeded from the premise that raising the flag would express government speech. See Brief in Opposition 23 (explaining that \"viewpoint neutrality\" was \"incompatible\" with Boston’s view of its program). But we have rejected that premise in the preceding pages. We must therefore consider Boston’s actions in light of our holding. When a government does not speak for itself, it may not exclude speech based on \"religious viewpoint\"; doing so \"constitutes impermissible viewpoint discrimination.\" Good News Club v. Milford Central School, 533 U. S. 98, 112 (2001). Applying that rule, we have held, for example, that a public university may not bar student-activity funds from reimbursing only religious groups. See Rosenberger, 515 U. S., at 830–834. Here, Boston concedes that it denied Shurtleff ’s request solely because the Christian flag he asked to raise \"promot[ed] a specific religion.\" App. to Pet. for Cert. 155a (quoting Rooney deposition). Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause. For the foregoing reasons, we conclude that Boston’s flagraising program does not express government speech. As a result, the city’s refusal to let Shurtleff and Camp Constitution fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment. We reverse the First Circuit’s contrary judgment and remand the case for further proceedings consistent with this opinion."},
{"docket_number": "21-441", "syllabus": "Congress created the United States Trustee Program (Trustee Program) as a mechanism to transfer administrative functions previously handled by bankruptcy judges to U. S. Trustees, a component of the Department of Justice. Congress permitted the six judicial districts in North Carolina and Alabama to opt out of the Trustee Program. In these six districts, bankruptcy courts continue to appoint bankruptcy administrators under a system called the Administrator Program. The Trustee Program and the Administrator Program handle the same core administrative functions, but have different funding sources. Congress requires that the Trustee Program be funded in its entirety by user fees paid to the United States Trustee System Fund (UST Fund), largely paid by debtors who file cases under Chapter 11 of the Bankruptcy Code. 28 U. S. C. §589a(b)(5). Those debtors pay a fee in each quarter of the year that their case remains pending at a rate set by Congress and determined by the amount of disbursements the debtor’s estate made that quarter. See §1930(a). In contrast, the Administrator Program is funded by the Judiciary’s general budget. While initially Congress did not require Administrator Program district debtors to pay user fees at all, Congress permitted the Judicial Conference of the United States to require Chapter 11 debtors in Administrator Program districts to pay fees equal to those imposed in Trustee Program districts. See §1930(a)(7). Pursuant to a 2001 standing order of the Judicial Conference, from 2001 to 2017 all districts nationwide charged similarly situated debtors uniform fees. In 2017, Congress enacted a temporary increase in the fee rates applicable to large Chapter 11 cases to address a shortfall in the UST Fund. See 131 Stat. 1229 (2017 Act). The 2017 Act provided that the fee raise would become effective in the first quarter of 2018, would last only through 2022, and would be applicable to currently pending and newly filed cases. The Judicial Conference adopted the 2017 fee increase for the six Administrator Program districts, effective October 1, 2018, and applicable only to newly filed cases. In 2008, Circuit City Stores, Inc., filed for Chapter 11 bankruptcy in the Eastern District of Virginia, a Trustee Program district. In 2010, the Bankruptcy Court confirmed a joint-liquidation plan, overseen by a trustee (petitioner here), to collect, administer, distribute, and liquidate all of Circuit City’s assets. The liquidation plan required petitioner to pay quarterly fees to the U. S. Trustee while the Chapter 11 case was pending. Circuit City’s bankruptcy was still pending when Congress increased the fees for Chapter 11 debtors in Trustee Program districts through the 2017 Act. Across the first three quarters of 2018, petitioner paid $632,542 in total fees, significantly more than the $56,400 petitioner would have paid absent the fee increase in the 2017 Act. Petitioner filed for relief against the Acting U. S. Trustee for Region 4 (respondent here) contending that the fee increase was nonuniform across Trustee Program districts and Administrator Program districts, in violation of the Constitution’s Bankruptcy Clause. The Bankruptcy Court agreed, and directed that for the fees due from January 1, 2018, onward, the Circuit City trustee pay the rate in effect prior to the 2017 Act. The Bankruptcy Court reserved the question whether the trustee could recover any \"overpayments\" made under the 2017 Act. The Fourth Circuit reversed, holding that the fee increase did not violate the uniformity requirement of the Bankruptcy Clause because the increase applied only to debtors in Trustee Program districts in order to bolster the dwindling UST Fund, which funded the Trustee Program alone. Held: Congress’ enactment of a significant fee increase that exempted debtors in two States violated the uniformity requirement of the Bankruptcy Clause. Pp. 7–15. (a) The Bankruptcy Clause’s uniformity requirement—which empowers Congress to establish \"uniform Laws on the subject of Bankruptcies throughout the United States,\" U. S. Const., Art. I, §8, cl. 4— applies to the 2017 Act. Respondent contends that the 2017 Act was not a law \"on the subject of Bankruptcies\" to which the uniformity requirement applies, but instead a law enacted pursuant to the Necessary and Proper Clause, U. S. Const., Art. I, §8, cl. 18, meant to help administer substantive bankruptcy law. Nothing in the language of the Bankruptcy Clause suggests a distinction between substantive and administrative laws, however, and this Court has repeatedly emphasized that the Bankruptcy Clause’s language, embracing \"laws on the subject of Bankruptcies,\" is broad. This Court has never distinguished between substantive and administrative bankruptcy laws or suggested that the uniformity requirement would not apply to both. Further, the Court has never suggested that all administrative bankruptcy laws are enacted pursuant to the Necessary and Proper Clause, nor that the Necessary and Proper Clause permits Congress to circumvent the limitations set by the Bankruptcy Clause. To the contrary, Congress cannot evade the \"affirmative limitation\" of the uniformity requirement by enacting legislation pursuant to other grants of authority. See Railway Labor Executives’ Assn. v. Gibbons, 455 U. S. 457, 468–469. In any event, the 2017 fee provision fits comfortably under the scope of the Bankruptcy Clause: The provision amended a statute titled \"Bankruptcy fees,\" §1930, and the only \"subject\" of the 2017 Act is bankruptcy. Moreover, the 2017 Act does affect the \"substance of debtorcreditor relations\" because increasing mandatory fees paid out of the debtor’s estate decreases the funds available for payment to creditors. Respondent points to purported historic analogues to argue that the uniformity requirement does not apply where Congress sets different fee structures with different funding mechanisms for debtors in different bankruptcy districts. But the fee increase at issue here is materially different from the examples cited by respondent. Unlike respondent’s examples, the 2017 Act does not confer discretion on bankruptcy districts to set regional policies based on regional needs. Rather, Congress exempted debtors in only 2 States from a fee increase that applied to debtors in 48 States, without identifying any material difference between debtors across those States. Pp. 7–10. (b) The 2017 Act violated the uniformity requirement of the Bankruptcy Clause. The Bankruptcy Clause confers broad authority on Congress with the limitation that the laws enacted be \"uniform.\" The Court’s three decisions addressing the uniformity requirement together stand for the proposition that the Bankruptcy Clause does not permit arbitrary geographically disparate treatment of debtors. In Moyses v. Hanover Nat’l Bank, 186 U. S. 181, the Court rejected a challenge to the constitutionality of the Bankruptcy Act of 1898, which permitted individual debtor exemptions under different state laws, explaining that the \"general operation of the law is uniform although it may result in certain particulars differently in different States.\" Id., at 190. In the Regional Rail Reorganization Act Cases, 419 U. S. 102, the Court affirmed the constitutionality of legislation which applied only to rail carriers operating within a defined region of the country, noting the \"flexibility inherent\" in the Bankruptcy Clause, id., at 158, permits Congress to enact geographically limited bankruptcy laws consistent with the uniformity requirement in response to a geographically limited problem. In Gibbons, 455 U. S. 457, the Court struck down legislation in which Congress altered the priority of claimants in a single railroad’s bankruptcy proceedings, holding that \"[t]o survive scrutiny under the Bankruptcy Clause, a law must at least apply uniformly to a defined class of debtors.\" Id., at 473. Here, all agree that the 2017 Act’s fee increase was not geographically uniform because the fee increase applied differently to Chapter 11 debtors in different regions. That geographical disparity meant that petitioner paid over $500,000 more in fees compared to an identical debtor in North Carolina or Alabama. While respondent contends that such disparities were a permissible effort to solve the budgetary shortfall in the UST Fund, an arguably geographical problem, that shortfall stemmed not from an external and geographically isolated need, but from Congress’ creation of a dual bankruptcy system which allowed certain districts to opt into a system more favorable for debtors. The Clause does not permit Congress to treat identical debtors differently based on artificial distinctions Congress itself created. Pp. 10–14. (c) The Court remands for the Fourth Circuit to consider in the first instance the proper remedy. Pp. 14–15.", "opinion": "The Bankruptcy Clause empowers Congress to establish \"uniform Laws on the subject of Bankruptcies throughout the United States.\" U. S. Const., Art. I, §8, cl. 4. The Clause’s requirement that bankruptcy laws be \"uniform\" is not a straitjacket: Congress retains flexibility to craft legislation that responds to different regional circumstances that arise in the bankruptcy system. Nor, however, is this uniformity requirement toothless. The question in this case is whether Congress’ enactment of a significant fee increase that exempted debtors in two States violated the uniformity requirement. Here, it did. I A Bankruptcy cases involve both traditional judicial responsibilities and extensive administrative ones. Until 1978, bankruptcy judges handled both. This meant that, in addition to their traditional judicial function of ruling on disputed matters in adversarial proceedings, bankruptcy judges dealt with an array of administrative tasks, such as appointing private trustees where appropriate; organizing creditors’ committees; supervising the filing of required reports, schedules, and taxes; and monitoring cases for signs of abuse and fraud. See H. R. Rep. No. 99–764, p. 17 (1986). Concerned that these dual roles were overloading bankruptcy judges and creating an appearance of bias, particularly because judges were responsible for supervising trustees that they themselves had appointed, Congress in 1978 piloted the United States Trustee Program (Trustee Program) in 18 of the 94 federal judicial districts. See id., at 17–18; Bankruptcy Reform Act of 1978, 92 Stat. 2549. To \"rende[r] the separation of administrative and judicial functions complete,\" the pilot program transferred the administrative functions previously handled by the bankruptcy courts to newly created U. S. Trustees, housed within the Department of Justice rather than the Administrative Office of the U. S. Courts. H. R. Rep. No. 95–595, p. 115 (1977). In 1986, Congress sought to make the pilot Trustee Program permanent and to expand it nationwide, but met resistance from stakeholders in North Carolina and Alabama. See The United States Trustee System: Hearing on S. 1961 before the Subcommittee on Courts of the Senate Committee on the Judiciary, 99th Cong., 2d Sess., 129 (1986). As a result, Congress opted to expand mandatorily the Trustee Program to all federal judicial districts except for the six judicial districts in North Carolina and Alabama. Congress permitted only those six districts to continue judicial appointment of bankruptcy administrators, referring to that system as the Administrator Program. §§111–115, 302(d)(3), 100 Stat. 3090–3095, 3121–3123. The Administrator Program was scheduled to phase out in 1992, but Congress extended it by 10 years. §317(a), 104 Stat. 5115. At the end of those 10 years, however, Congress did not phase out the Administrator Program. Instead, it eliminated the sunset period and permanently exempted the six districts from the requirement to transition to the Trustee Program, while providing that each district could individually elect to do so. §501, 114 Stat. 2421–2422 (2000 Act); §302(d)(3), 100 Stat. 3121–3123. Each of the six districts continues to participate in the Administrator Program. The Trustee Program and the Administrator Program handle the same core administrative functions, but have different funding sources. Congress requires that the Trustee Program be funded in its entirety by user fees paid to the United States Trustee System Fund (UST Fund), the bulk of which are paid by debtors who file cases under Chapter 11 of the Bankruptcy Code. 28 U. S. C. §589a(b)(5). Those debtors pay a fee in each quarter of the year that their case remains pending at a rate set by Congress. The fee varies according to the amount of funds paid out (\"disbursed\") from the bankruptcy estate to creditors, suppliers, and other parties during that quarter. See §1930(a). In contrast, Congress does not require the Administrator Program to fund itself. Instead, the Administrator Program is funded by the Judiciary’s general budget. In re Circuit City Stores, Inc., 996 F. 3d 156, 160 (CA4 2021). Initially, Congress did not require Administrator Program district debtors to pay user fees at all. After the Ninth Circuit held that system unconstitutional, see St. Angelo v. Victoria Farms, Inc., 38 F. 3d 1525, 1532–1533 (1994), amended, 46 F. 3d 969 (1995), Congress provided that \"‘the Judicial Conference of the United States may require the debtor in a case under chapter 11 [filed in an Administrator Program district] to pay fees equal to those imposed’\" in Trustee Program districts, 2000 Act §105, 114 Stat. 2412 (enacting 28 U. S. C. §1930(a)(7)). Congress directed that any such fees be deposited into a fund that offsets appropriations to the Judicial Branch. Ibid. The Judicial Conference adopted a standing order in 2001 directing Administrator Program districts to charge fees \"in the amounts specified in 28 U. S. C. §1930, as those amounts may be amended from time to time.\" Report of the Proceedings of the Judicial Conference of the United States 46 (Sept./Oct. 2001). Under this standing order, for the next 17 years, the Judicial Conference matched all Trustee Program fee increases with equivalent Administrator Program fee increases, meaning that all districts nationwide charged similarly situated debtors uniform fees. In 2017, concerned with a shortfall in the UST Fund, Congress enacted a temporary, but significant, increase in the fee rates applicable to large Chapter 11 cases. See Pub. L. 115–72, Div. B, 131 Stat. 1229 (2017 Act). The increase was set to take effect only if the UST Fund balance dropped below $200 million as of September 30 of the most recent fiscal year. If that condition was met, the increase applied on a quarterly basis to any debtors with a disbursement of $1 million or more during that quarter, regardless of whether their case was newly filed or already pending when the increase took effect. For those debtors, the maximum fee was increased from $30,000 a quarter to $250,000 a quarter. §1004(a), id., at 1232. The statute provided that the fee raise would become effective in the first quarter of 2018 and would last only through 2022. Despite the Judicial Conference’s standing order, and unlike with previous fee increases, the six districts in the two States participating in the Administrator Program did not immediately adopt the 2017 fee increase. Only in September 2018 did the Judicial Conference order Administrator Program districts to implement the amended fee schedule. Even then, however, two key differences remained between the fee increase faced by debtors in Trustee Program districts as opposed to those faced by debtors in Administrator Program districts. First, the fee increase took effect for the six Administrator Program districts as of October 1, 2018, while the increase took effect for the Trustee Program districts as of the first quarter of 2018. Second, in Administrator Program districts, the fee increase applied only to newly filed cases, while in Trustee Program districts, the increase applied to all pending cases. In 2021, Congress amended the statute governing parity of fees between Trustee Program and Administrator Program districts, §1930(a)(7), to replace the word \"may\" with \"shall.\" See Pub. L. 116–325, 134 Stat. 5088. As a result, the statute now provides that the Judicial Conference \"shall require\" imposition of fees in Administrator Program districts that are equal to those imposed in Trustee Program districts. §1930(a)(7). This change \"confirm[ed] the longstanding intention of Congress that quarterly fee requirements remain consistent across all Federal judicial districts.\" Id., at 5086. B In 2008, Circuit City Stores, Inc., filed for Chapter 11 bankruptcy in the Eastern District of Virginia, a Trustee Program district. In 2010, the Bankruptcy Court confirmed a joint-liquidation plan, overseen by a trustee (petitioner here), to collect, administer, distribute, and liquidate all of Circuit City’s assets. The liquidation plan required petitioner to \"‘pay quarterly fees to the U. S. Trustee until the Chapter 11 Cases are closed or converted.’\" In re Circuit City Stores, 606 B. R. 260, 263 (2019). In 2010, when the plan was confirmed, the maximum quarterly fee was $30,000. Circuit City’s bankruptcy was still pending when Congress raised the fees for Chapter 11 debtors in Trustee Program districts through the 2017 Act. Across the first three quarters after the fee increase took effect, petitioner paid $632,542 in total fees. Id., at 267, n. 20. Had Congress not increased fees, petitioner would have paid $56,400 over that same period. Ibid. Petitioner filed for relief against the Acting U. S. Trustee for Region 4 (respondent here, represented by the Solicitor General) in the Bankruptcy Court of the Eastern District of Virginia. Petitioner objected that the fee increase under the 2017 Act was nonuniform across Trustee Program districts and Administrator Program districts, in violation of the Constitution’s Bankruptcy Clause. The Bankruptcy Court agreed, and directed that for the fees due from January 1, 2018, onward, the trustee pay the rate in effect prior to the 2017 Act. Id., at 270–271. The court reserved the question whether the trustee could recover any \"overpayments\" made under the 2017 Act. Ibid. A divided panel of the Fourth Circuit reversed. The court agreed that the uniformity requirement of the Bankruptcy Clause applied to the 2017 Act, but it interpreted the Clause as forbidding \"only ‘arbitrary’ geographic differences.\" 996 F. 3d, at 166. In the court’s view, the fee increase permissibly applied only to Trustee Program districts because the UST Fund, which funded that program alone, was dwindling. Therefore, the court reasoned, Congress’ effort to remedy that problem was not arbitrary. Judge Quattlebaum dissented in relevant part, interpreting the Bankruptcy Clause to preclude disparate treatment of bankruptcy districts unless the treatment was \"aimed at addressing issues that are geographical in nature.\" Id., at 175. In Judge Quattlebaum’s view, the difference between Trustee Program districts and Administrator Program districts was arbitrary, as there was nothing \"geographically distinct about Alabama or North Carolina that justified a different approach in those states.\" Ibid. This Court granted certiorari, 595 U. S. ___ (2022), to resolve a split that had developed in the lower courts over the constitutionality of the 2017 Act. A The Bankruptcy Clause empowers Congress to establish \"uniform Laws on the subject of Bankruptcies throughout the United States.\" U. S. Const., Art. I, §8, cl. 4. The first question before the Court is whether the 2017 Act is subject to the Bankruptcy Clause’s uniformity requirement at all. Respondent contends that the 2017 Act was not a law \"on the subject of Bankruptcies\" to which the uniformity requirement applies, but, rather, a law meant to help administer substantive bankruptcy law. Respondent interprets the Bankruptcy Clause as extending only to laws that \"alter the substance of debtor-creditor relations,\" such as laws that set priorities for claims or exempt property from an estate. Brief for Respondent 25. In respondent’s view, the Necessary and Proper Clause, U. S. Const., Art. I, §8, cl. 18, supplies the authority for Congress to pass a law auxiliary to a substantive bankruptcy law. Nothing in the language of the Bankruptcy Clause itself, however, suggests a distinction between substantive and administrative laws. This Court has repeatedly emphasized that the Bankruptcy Clause’s language, embracing \"laws on the subject of Bankruptcies,\" is broad. For example, the Court has recognized that the \"subject of bankruptcies is incapable of final definition,\" and includes \"nothing less than ‘the subject of the relations between [a] debtor and his creditors.’\" Wright v. Union Central Life Ins. Co., 304 U. S. 502, 513–514 (1938). Without purporting to define the full scope of the Clause, the Court has interpreted the Clause to have \"granted plenary power to Congress over the whole subject of ‘bankruptcies,’\" and observed that the \"language used\" did not \"limit\" the scope of Congress’ authority. Hanover Nat. Bank v. Moyses, 186 U. S. 181, 187 (1902). Nor has this Court ever distinguished between substantive and administrative bankruptcy laws or suggested that the uniformity requirement would not apply to both. Respondent argues that each of this Court’s prior cases on the uniformity requirement has addressed what he terms \"substantive bankruptcy laws,\" Brief for Respondent 24, but these cases do not establish that the uniformity requirement only applies to such \"substantive\" laws. This Court has stated that \"the powers of the general grant\" of the Necessary and Proper Clause must be added to the Bankruptcy Clause’s \"specific grant\" of power to Congress to legislate on the subject of bankruptcies. Wright, 304 U. S., at 513. The Court has never suggested, however, that all \"administrative\" bankruptcy laws, Brief for Respondent 13, are enacted pursuant to the Necessary and Proper Clause, nor that the Necessary and Proper Clause permits Congress to circumvent the limitations set by the Bankruptcy Clause. To the contrary, the Court has held that Congress cannot evade the \"affirmative limitation\" of the uniformity requirement by enacting legislation pursuant to other grants of authority. Railway Labor Executives’ Assn. v. Gibbons, 455 U. S. 457, 468–469 (1982) (rejecting the contention that Congress could \"enact nonuniform bankruptcy laws pursuant to the Commerce Clause,\" because doing so \"would eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws\"). Not surprisingly, all courts to have considered this question to date (even those that have found the 2017 Act constitutional) have accepted that the statute is subject to the Bankruptcy Clause’s uniformity requirement. See In re Clinton Nurseries, Inc., 998 F. 3d 56, 64, and n. 6 (CA2 2021) (collecting cases). The 2017 fee provision amended a statute titled \"Bankruptcy fees.\" 28 U. S. C. §1930. The effect is to set fees that must be paid by a bankruptcy trustee from the debtor’s estate in a bankruptcy proceeding. The only \"subject\" of the 2017 Act is bankruptcy. Moreover, and importantly, the 2017 Act does affect the \"substance of debtor-creditor relations\": Increasing mandatory fees paid out of the debtor’s estate decreases the funds available for payment to creditors. As a result, the obligations between creditors and debtors are changed. Respondent also argues that historic and modern congressional practice support the notion that bankruptcy fees are wholly exempt from the uniformity requirement. This argument glosses over the nature of the practices at issue. The historic examples respondent cites concern uniform federal laws allowing for local variation by delegating discretion to districts to establish their own procedures for certain bankruptcy matters, including fees, in view of local needs and conditions. See An Act to Establish an Uniform System of Bankruptcy Throughout the United States, §47, 2 Stat. 33 (1800) (providing \"[t]hat the district judges, in each district respectively, shall fix a rate of allowance to be made to the commissioners of bankruptcy\"); An Act to Establish a Uniform System of Bankruptcy Throughout the United States, §6, 5 Stat. 446 (1841) (establishing that district courts may \"prescribe a tariff or table of fees and charges\"). Similarly, the contemporary laws respondent cites are uniform laws allowing for local determination of governing rules. See, e.g., 28 U. S. C. §§158(b)(1), (6) (providing that district courts may, but need not, participate in the bankruptcy appellate panel for its circuit if the circuit has created one). As discussed below, see infra, at 10–12, the uniformity requirement does not demand that Congress forbid or eliminate such local variation or choice. The fee increase at issue here is materially different from these laws. It does not confer discretion on bankruptcy districts to set regional policies based on regional needs. Rather, Congress exempted debtors in only 2 States from a fee increase that applied to debtors in 48 States, without identifying any material difference between debtors across those States. The only difference between the States in which the fee increase applied and the States in which it was not required was the desire of those two States not to participate in the Trustee Program. The historical record therefore provides no support for respondent’s argument that the uniformity requirement does not apply where Congress sets different fee structures with different funding mechanisms for debtors in different bankruptcy districts. B Having determined that the 2017 Act falls within the ambit of the Bankruptcy Clause, the Court must now decide whether the Act was a permissible exercise of that Clause. 1 Although the Bankruptcy Clause confers broad authority on Congress, the Clause also imposes a limitation on that authority: the requirement that the laws enacted be \"uniform.\" The Court has addressed the uniformity requirement on three occasions. Taken together, they stand for the proposition that the Bankruptcy Clause offers Congress flexibility, but does not permit arbitrary geographically disparate treatment of debtors. The Court first addressed the uniformity requirement in rejecting a challenge to the constitutionality of the Bankruptcy Act of 1898, which permitted individual debtor exemptions, including homestead and wage exemptions under state laws. Moyses, 186 U. S. 181. The Court in Moyses held that the Bankruptcy Clause’s uniformity principle does not require Congress to eliminate existing state exemptions in bankruptcy laws. Id., at 188. The Court explained that the \"general operation of the law is uniform although it may result in certain particulars differently in different States.\" Id., at 190. Next, in the Regional Rail Reorganization Act Cases, 419 U. S. 102 (1974), the Court affirmed the constitutionality of the Regional Rail Reorganization Act of 1973, which applied only to rail carriers operating within a defined region of the country, where \"[n]o railroad reorganization . . . was pending outside that defined region.\" Id., at 159–160. The Court described the \"flexibility inherent\" in the Bankruptcy Clause, id., at 158, which \"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,\" id., at 159. Because the Regional Rail Reorganization Act \"operate[d] uniformly upon all bankrupt railroads then operating in the United States,\" it was consistent with the Bankruptcy Act’s uniformity principle. Id., at 160. Put simply, Congress may enact geographically limited bankruptcy laws consistent with the uniformity requirement if it is responding to a geographically limited problem. While the uniformity requirement allows Congress to account for \"differences that exist between different parts of the country,\" id., at 159, it does not give Congress free rein to subject similarly situated debtors in different States to different fees because it chooses to pay the costs for some, but not others. In Gibbons, 455 U. S. 457, the Court struck down the Rock Island Railroad Transition and Employee Assistance Act (RITA), in which Congress altered the order of priority of claimants in a single railroad’s bankruptcy proceedings. The Court recognized that the Bankruptcy Clause \"contains an affirmative limitation or restriction upon Congress’ power,\" namely, the uniformity requirement. Id., at 468. RITA exceeded this limitation, the Court explained, because it singled out one railroad and did not apply to other similarly situated railroads that were engaged in bankruptcy proceedings. Id., at 470. The Court reasoned that unlike the Regional Rail Reorganization Act, RITA was \"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.\" Ibid. For that reason, RITA \"cannot be said to apply uniformly even to major railroads in bankruptcy proceedings throughout the United States.\" Id., at 471. The Court emphasized that its \"holding . . . does not impair Congress’ ability under the Bankruptcy Clause to define classes of debtors and to structure relief accordingly\" and summarized that \"[t]o survive scrutiny under the Bankruptcy Clause, a law must at least apply uniformly to a defined class of debtors.\" Id., at 473. In sum, our precedent provides that the Bankruptcy Clause offers Congress flexibility, but does not permit the arbitrary, disparate treatment of similarly situated debtors based on geography. 2 Here, there is no dispute that the 2017 Act’s fee increase was not geographically uniform. The only remaining question is whether Congress permissibly imposed nonuniform fees because it was responding to a funding deficit limited to the Trustee Program districts. Under the specific circumstances present here, the nonuniform fee increase violated the uniformity requirement. All agree that the fee increase applied differently to Chapter 11 debtors in different regions. Debtors in Alabama and North Carolina, unlike debtors in the remainder of the country, paid no fee increases for the first three quarters of 2018. Moreover, the fee increase only applied to newly filed cases, and not pending cases, in those two States. That geographical disparity meant that petitioner paid over $500,000 more in fees compared to an identical debtor in North Carolina or Alabama. Recognizing that the 2017 Act caused such disparities, respondent contends that those disparities were a permissible effort to solve a particular geographical problem: the budgetary shortfall that befell the UST Fund, which supports the Trustee Program but not the Administrator Program. Respondent argues that this problem justified Congress’ imposition of fee increases specific to Trustee Program districts in order to replenish the UST Fund’s coffers. It is true that Congress’ stated goal in raising fees in Trustee Program districts was to address this budgetary shortfall. That shortfall, however, existed only because Congress itself had arbitrarily separated the districts into two different systems with different cost funding mechanisms, requiring Trustee Program districts to fund the Program through user fees while enabling Administrator Program districts to draw on taxpayer funds by way of the Judiciary’s general budget. The problem Congress sought to address here is thus different from the problem facing the debtors in the Regional Rail Reorganization Act Cases. There, a \"national rail transportation crisis\" prompted Congress to respond with the Regional Rail Reorganization Act of 1973. 419 U. S., at 159. That crisis arose when eight major railroads located in the Northeast and the Midwest entered reorganization proceedings. Id., at 108. Congress responded accordingly with legislation tailored to those regions. Id., at 108–109. The problems prompting Congress’ disparate treatment in this case, however, stem not from an external and geographically isolated need, but from Congress’ own decision to create a dual bankruptcy system funded through different mechanisms in which only districts in two States could opt into the more favorable fee system for debtors. The Bankruptcy Clause affords Congress flexibility to \"fashion legislation to resolve geographically isolated problems,\" id., at 159, but as precedent instructs, the Clause does not permit Congress to treat identical debtors differently based on an artificial funding distinction that Congress itself created. The Clause, after all, would clearly prohibit Congress from arbitrarily dividing States into two and charging different fees to States in different categories unrelated to the needs of, or conditions in, those States. The Clause does not allow Congress to accomplish in two steps what it forbids in one.2 A few observations on the limits of this decision are in order. The Court does not today address the constitutionality of the dual scheme of the bankruptcy system itself, only Congress’ decision to impose different fee arrangements in those two systems. The Court’s holding today also should not be understood to impair Congress’ authority to structure relief differently for different classes of debtors or to respond to geographically isolated problems. The Court holds only that the uniformity requirement of the Bankruptcy Clause prohibits Congress from arbitrarily burdening only one set of debtors with a more onerous funding mechanism than that which applies to debtors in other States. The parties dispute the appropriate remedy. Petitioner seeks a full refund of fees that it paid during the nonuniform period. Respondent argues that any remedy should apply only prospectively, or should result in a fee increase for debtors who paid less in the Administrator Program districts. The parties raise a host of legal and administrative concerns with each of the remedies proposed, including the practicality, feasibility, and equities of each proposal; their costs; and potential waivers by nonobjecting debtors. The court below, however, has not yet had an opportunity to address these issues or their relevancy to the proper remedy. \"[M]indful that we are a court of review, not of first view,\" Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), this Court remands for the Fourth Circuit to consider these questions in the first instance. For these reasons, the judgment of the Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "21-309", "syllabus": "Respondent Latrice Saxon, a ramp supervisor for Southwest Airlines, trains and supervises teams of ramp agents who physically load and unload cargo on and off airplanes that travel across the country. Like many ramp supervisors, Saxon also frequently loads and unloads cargo alongside the ramp agents. Saxon came to believe that Southwest was failing to pay proper overtime wages to ramp supervisors, and she brought a putative class action against Southwest under the Fair Labor Standards Act of 1938. Because Saxon’s employment contract required her to arbitrate wage disputes individually, Southwest sought to enforce its arbitration agreement and moved to dismiss. In response, Saxon claimed that ramp supervisors were a \"class of workers engaged in foreign or interstate commerce\" and therefore exempt from the Federal Arbitration Act’s coverage. 9 U. S. C. §1. The District Court disagreed, holding that only those involved in \"actual transportation,\" and not those who merely handle goods, fell within §1’s exemption. The Court of Appeals reversed. It held that \"[t]he act of loading cargo onto a vehicle to be transported interstate is itself commerce, as that term was understood at the time of the [FAA’s] enactment in 1925.\" 993 F. 3d 492, 494. Held: Saxon belongs to a \"class of workers engaged in foreign or interstate commerce\" to which §1’s exemption applies. Pp. 3–11. (a) This Court interprets §1’s language according to its \"ordinary, contemporary, common meaning.\" Sandifer v. United States Steel Corp., 571 U. S. 220, 227. To discern that ordinary meaning, those words \" ‘must be read’ \" and interpreted \" ‘in their context.’ \" Parker Drilling Management Services, Ltd. v. Newton, 587 U. S. ___, ___. Pp. 3–7. (1) The parties dispute how to define the relevant \"class of workers.\" Saxon argues that because the air transportation industry engages in interstate commerce, airline employees, as a whole, constitute a \"class of workers\" covered by §1. By contrast, Southwest maintains that the relevant class includes only those airline employees actually engaged day-to-day in interstate commerce. This Court rejects Saxon’s industrywide approach. By referring to \"workers\" rather than \"employees,\" the FAA directs attention to \"the performance of work.\" New Prime Inc. v. Oliveira, 586 U. S. ___, ___. And the word \"engaged\" similarly emphasizes the actual work that class members typically carry out. Saxon is therefore a member of a \"class of workers\" based on what she frequently does at Southwest—that is, physically loading and unloading cargo on and off airplanes—and not on what Southwest does generally. Pp. 3–4. (2) The parties also dispute whether the class of airplane cargo loaders is \"engaged in foreign or interstate commerce.\" It is. To be \"engaged\" in \"commerce\" means to be directly involved in transporting goods across state or international borders. Thus, any class of workers so engaged falls within §1’s exemption. Airplane cargo loaders are such a class. Context confirms this reading. In Circuit City Stores, Inc. v. Adams, 532 U. S. 105, the Court applied two well-settled canons of statutory interpretation to hold that §1 exempted only \"transportation workers,\" rather than all employees. The Court indicated that any such exempted worker must at least play a direct and \"necessary role in the free flow of goods\" across borders. Id., at 121. Cargo loaders exhibit this central feature of a transportation worker. A final piece of statutory context further confirms that cargo loading is part of cross-border \"commerce.\" Section 1 of the FAA defines exempted \"maritime transactions\" to include \"agreements relating to wharfage . . . or any other matters in foreign commerce.\" Thus, if an \"agreemen[t] relating to wharfage\"—i.e., money paid to access a cargoloading facility—is a \"matte[r] in foreign commerce,\" it stands to reason that an individual who actually loads cargo on vehicles traveling across borders is himself engaged in such commerce. Pp. 4–7. (b) Both parties proffer arguments disagreeing with this analysis, but none is convincing. Pp. 7–11. (1) Saxon thinks the relevant \"class of workers\" should include all airline employees, not just cargo loaders. For support, she argues that \"railroad employees\" and \"seamen\"—two classes of workers listed immediately before §1’s catchall provision—refer generally to employees in those industries. Saxon’s premise is flawed. \"Seamen\" is not an industrywide category but instead a subset of workers engaged in the maritime shipping industry. For example, \"seamen\" did not include all those employed by companies engaged in maritime shipping when the FAA was enacted. Pp. 8–9. (2) Southwest’s three counterarguments all fail. First, Southwest narrowly construes §1’s catchall category—\"any other class of workers engaged in foreign or interstate commerce\"—to include only workers who physically transport goods or people across foreign or international boundaries. Southwest relies on the definition of \"seamen\" as only those \"employed on board a vessel,\" McDermott Int’l, Inc. v. Wilander, 498 U. S. 337, 346, and argues that the catchall category should be read along the same lines to exclude airline workers, like Saxon, who do not ride aboard an airplane in interstate or foreign transit. But Southwest’s acknowledgment that the statute’s reference to \"railroad employees\" is somewhat ambiguous in effect concedes that the three statutory categories in §1—\"seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce\"—do not share the attribute that Southwest would like read into the catchall provision. Well-settled canons of statutory interpretation neither demand nor permit limiting a broadly worded catchall phrase based on an attribute that inheres in only one of the list’s preceding specific terms. Second, Southwest argues that cargo loading is similar to other activities that this Court has found to lack a necessary nexus to interstate commerce in other contexts. But the cases Southwest invokes all addressed activities far more removed from interstate commerce than physically loading cargo directly on and off an airplane headed out of State. See, e.g., Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186. Finally, Southwest argues that the FAA’s \"proarbitration purposes\" counsel in favor of an interpretation that errs on the side of fewer §1 exemptions. Here, however, plain text suffices to show that airplane cargo loaders, and thus ramp supervisors who frequently load and unload cargo, are exempt from the FAA’s scope under §1. Pp. 9–11. 993 F. 3d 492, affirmed.", "opinion": "Latrice Saxon works for Southwest Airlines as a ramp supervisor. Her work frequently requires her to load and unload baggage, airmail, and commercial cargo on and off airplanes that travel across the country. The question presented is whether, under §1 of the Federal Arbitration Act, she belongs to a \"class of workers engaged in foreign or interstate commerce\" that is exempted from the Act’s coverage. We hold that she does. I Southwest Airlines moves a lot of cargo. In 2019, Southwest carried the baggage of over 162 million passengers to domestic and international destinations. Dept. of Transp., Bureau of Transp. Statistics (BTS), Passengers Southwest Airlines—All Airports (May 2, 2022) (online source archived at www.supremecourt.gov). In total, Southwest transported more than 256 million pounds of passenger, commercial, and mail cargo. BTS, Air Carriers: T–100 Domestic Market (U. S. Carriers) (May 2, 2022) (online source archived at www.supremecourt.gov). To move that cargo, Southwest employs \"ramp agents,\" who physically load and unload baggage, airmail, and freight. It also employs \"ramp supervisors,\" who train and supervise teams of ramp agents. Frequently, ramp supervisors step in to load and unload cargo alongside ramp agents. See 993 F. 3d 492, 494 (CA7 2021). Saxon is a ramp supervisor for Southwest at Chicago Midway International Airport. As part of her employment contract, she agreed to arbitrate wage disputes individually. Nevertheless, when Saxon came to believe that Southwest was failing to pay proper overtime wages to her and other ramp supervisors, she brought a putative class action against Southwest under the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U. S. C. §201 et seq. Southwest sought to enforce its arbitration agreement with Saxon under the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., and moved to dismiss the lawsuit. In response, Saxon invoked §1 of the FAA, which exempts from the statute’s ambit \"contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.\" Saxon argued that ramp supervisors, like seamen and railroad employees, were an exempt \"class of workers engaged in foreign or interstate commerce.\" Ibid. The District Court disagreed, holding that only those involved in \"actual transportation,\" and not the \"mer[e] handling [of] goods,\" fell within the exemption. 2019 WL 4958247, *7 (ND Ill., Oct. 8, 2019). The Court of Appeals reversed. It held that \"[t]he act of loading cargo onto a vehicle to be transported interstate is itself commerce, as that term was understood at the time of the [FAA’s] enactment in 1925.\" 993 F. 3d, at 494. Citing Saxon’s \"uncontroverted declaration\" that ramp supervisors at Midway \"frequently\" load and unload cargo, the Court of Appeals reserved the question \"whether supervision of cargo loading alone\" would also fall within the FAA’s §1 exemption. Id., at 494, 497. The Seventh Circuit’s decision conflicted with an earlier decision of the Fifth Circuit. See Eastus v. ISS Facility Services, Inc., 960 F. 3d 207 (2020). We granted certiorari to resolve the disagreement. 595 U. S. ___ (2021). II In this case, we must decide whether Saxon falls within a \"class of workers engaged in foreign or interstate commerce.\" 9 U. S. C. §1. We interpret this language according to its \"‘ordinary, contemporary, common meaning.’\" Sandifer v. United States Steel Corp., 571 U. S. 220, 227 (2014) (quoting Perrin v. United States, 444 U. S. 37, 42 (1979)); see also New Prime Inc. v. Oliveira, 586 U. S. ___, ___–___ (2019) (slip op., at 6–7). To discern that ordinary meaning, those words \"‘must be read’\" and interpreted \"‘in their context,’\" not in isolation. Parker Drilling Management Services, Ltd. v. Newton, 587 U. S. ___, ___ (2019) (slip op., at 5) (quoting Roberts v. Sea-Land Services, Inc., 566 U. S. 93, 101 (2012)). We begin by defining the relevant \"class of workers\" to which Saxon belongs. Then, we determine whether that class of workers is \"engaged in foreign or interstate commerce.\" A First, the parties dispute how to define the relevant \"class of workers.\" Saxon argues that because air transportation \"[a]s an industry\" is engaged in interstate commerce, \"airline employees\" constitute a \"‘class of workers’\" covered by §1. Brief for Respondent 17. Southwest, by contrast, maintains that §1 \"exempts classes of workers based on their conduct, not their employer’s,\" and the relevant class therefore includes only those airline employees who are actually engaged in interstate commerce in their day-to-day work. Reply Brief 4. The Court of Appeals rejected Saxon’s industrywide approach, see 993 F. 3d, at 497, and so do we. As we have observed before, the FAA speaks of \"‘workers,’\" not \" ‘employees’ or ‘servants.’ \" New Prime, 586 U. S., at ___–___ (slip op., at 9–10). The word \"workers\" directs the interpreter’s attention to \"the performance of work.\" Id., at ___ (slip op., at 10) (emphasis altered); see also Webster’s New International Dictionary 2350 (1922) (Webster’s) (worker: \"One that works\"); Funk & Wagnall’s New Standard Dictionary 2731 (1913) (worker: \"One who or that which performs work\"). Further, the word \"engaged\"—meaning \"[o]ccupied,\" \"employed,\" or \"[i]nvolved,\" Webster’s 725; see also, e.g., Black’s Law Dictionary 661 (3d ed. 1933) (defining \"engage\")—similarly emphasizes the actual work that the members of the class, as a whole, typically carry out. Saxon is therefore a member of a \"class of workers\" based on what she does at Southwest, not what Southwest does generally. On that point, Southwest has not meaningfully contested that ramp supervisors like Saxon frequently load and unload cargo. See 993 F. 3d, at 494, 497 (noting Saxon’s \"uncontroverted declaration assert[ing] that she and the other ramp supervisors . . . frequently fill in as ramp agents\" for up to three shifts per week). Thus, as relevant here, we accept that Saxon belongs to a class of workers who physically load and unload cargo on and off airplanes on a frequent basis.1 B Second, the parties dispute whether that class of airplane cargo loaders is \"engaged in foreign or interstate commerce\" under §1. We hold that it is. As always, we begin with the text. Again, to be \"engaged\" in something means to be \"occupied,\" \"employed,\" or \"involved\" in it. \"Commerce,\" meanwhile, includes, among other things, \"the transportation of . . . goods, both by land Like the Seventh Circuit, we \"need not consider . . . whether supervision of cargo loading alone would suffice\" to exempt a class of workers under §1. 993 F. 3d 492, 497 (2021). and by sea.\" Black’s Law Dictionary 220 (2d ed. 1910) (Black’s); see also, e.g., Webster’s 448 (commerce: \"the exchange of merchandise on a large scale between different places or communities\"). Thus, any class of workers directly involved in transporting goods across state or international borders falls within §1’s exemption. Airplane cargo loaders are such a class. We have said that it is \"too plain to require discussion that the loading or unloading of an interstate shipment by the employees of a carrier is so closely related to interstate transportation as to be practically a part of it.\" Baltimore & Ohio Southwestern R. Co. v. Burtch, 263 U. S. 540, 544 (1924). We think it equally plain that airline employees who physically load and unload cargo on and off planes traveling in interstate commerce are, as a practical matter, part of the interstate transportation of goods. They form \"a class of workers engaged in foreign or interstate commerce.\"2 Context confirms this reading. In Circuit City Stores, Inc. v. Adams, 532 U. S. 105 (2001), we considered whether §1 exempts all employment contracts or only those contracts involving \"transportation workers.\" Id., at 109. In concluding that §1 exempts only transportation-worker contracts, we relied on two well-settled canons of statutory interpretation. First, we applied the meaningful-variation canon. See, e.g., A. Scalia & B. Garner, Reading Law 170 (2012) (\"[W]here [a] document has used one term in one place, and a materially different term in another, the presumption is We recognize that the answer will not always be so plain when the class of workers carries out duties further removed from the channels of interstate commerce or the actual crossing of borders. Compare, e.g., Rittmann v. Amazon.com, Inc., 971 F. 3d 904, 915 (CA9 2020) (holding that a class of \"last leg\" delivery drivers falls within §1’s exemption), with, e.g., Wallace v. Grubhub Holdings, Inc., 970 F. 3d 798, 803 (CA7 2020) (holding that food delivery drivers do not). In any event, we need not address those questions to resolve this case. that the different term denotes a different idea\"). We observed that Congress used \"more open-ended formulations\" like \"‘affecting’\" or \"‘involving’\" commerce to signal \"congressional intent to regulate to the outer limits of authority under the Commerce Clause.\" Circuit City, 532 U. S., at 115–116, 118. By contrast, Congress used a \"narrower\" phrase—\"‘engaged in commerce’\"—when it wanted to regulate short of those limits. Id., at 118. Second, we applied the ejusdem generis canon, which instructs courts to interpret a \"general or collective term\" at the end of a list of specific items in light of any \"common attribute[s]\" shared by the specific items. Ali v. Federal Bureau of Prisons, 552 U. S. 214, 225 (2008). As applied to §1, that canon counseled that the phrase \"‘class of workers engaged in . . . commerce’\" should be \"controlled and defined by reference\" to the specific classes of \"‘seamen’\" and \"‘railroad employees’\" that precede it. Circuit City, 532 U. S., at 115. Taken together, these canons showed that §1 exempted only contracts with transportation workers, rather than all employees, from the FAA. See id., at 119. And, while we did not provide a complete definition of \"transportation worker,\" we indicated that any such worker must at least play a direct and \"necessary role in the free flow of goods\" across borders. Id., at 121. Put another way, transportation workers must be actively \"engaged in transportation\" of those goods across borders via the channels of foreign or interstate commerce. Ibid. Cargo loaders exhibit this central feature of a transportation worker. As stated above, one who loads cargo on a plane bound for interstate transit is intimately involved with the commerce (e.g., transportation) of that cargo. \"[T]here could be no doubt that [interstate] transportation [is] still in progress,\" and that a worker is engaged in that transportation, when she is \"doing the work of unloading\" or loading cargo from a vehicle carrying goods in interstate transit. Erie R. Co. v. Shuart, 250 U. S. 465, 468 (1919). A final piece of statutory context further confirms that cargo loading is part of cross-border \"commerce.\" The first sentence of §1 of the FAA defines exempted \"maritime transactions\" to include, among other things, \"agreements relating to wharfage, supplies furnished vessels or repairs to vessels, collisions, or any other matters in foreign commerce.\" (Emphasis added.) The use of \"other\" in the catchall provision indicates that Congress considered the preceding items to be \"matters in foreign commerce.\" And agreements related to the enumerated \"matte[r] in foreign commerce\" of \"wharfage,\" to take one example, included agreements for mere access to a wharf—which is simply a cargo-loading facility. See Black’s 1226 (wharfage: \"[m]oney paid for landing wares at a wharf, or for shipping or taking goods into a boat or barge from thence\"); Webster’s 2323 (similar); see also, e.g., Black’s 1226 (wharf: \"A perpendicular bank or mound . . . extending some distance into the water, for the convenience of lading and unlading ships and other vessels\"). It stands to reason, then, that if payments to access a cargo-loading facility relate to a \"matte[r] in foreign commerce,\" then an individual who actually loads cargo on foreign-bound ships docked along a wharf is himself engaged in such commerce. Likewise, any class of workers that loads or unloads cargo on or off airplanes bound for a different State or country is \"engaged in foreign or interstate commerce.\" In sum, text and context point to the same place: Workers, like Saxon, who load cargo on and off airplanes belong to a \"class of workers in foreign or interstate commerce.\" III Both Saxon and Southwest proffer arguments that disagree with portions of our analysis. Neither of them convinces us to change course. A For her part, Saxon thinks that we should define the \"class of workers\" as all airline employees who carry out the \"customary work\" of the airline, rather than cargo loaders more specifically. Tr. of Oral Arg. 56. That larger class of employees potentially includes everyone from cargo loaders to shift schedulers to those who design Southwest’s website. See id., at 51–52; but cf. ibid. (conceding that those who run the Southwest credit-card points program likely would not count). To support this reading, Saxon invokes the ejusdem generis canon. She argues, first, that \"railroad employees\" and \"seamen\" refer generally to employees in those industries providing \"dominant mode[s] of transportation\" in interstate and foreign commerce. Brief for Respondent 17. She then reasons, second, that all \"workers who do the work of the airlines have the same relationship to commerce as those who do the work of the railroad or ship.\" Ibid. Saxon’s attempted invocation of ejusdem generis is unavailing because it proceeds from the flawed premise that \"seamen\" and \"railroad employees\" are both industrywide categories. The statute’s use of \"seamen\" shows why that premise is mistaken. In 1925, seamen did not include all those employed by companies engaged in maritime shipping. Rather, seamen were only those \"whose occupation [was] to assist in the management of ships at sea; a mariner; a sailor; . . . any person (except masters, pilots, and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship.\" Webster’s 1906; see also, e.g., Black’s 1063 (seamen: \"[s]ailors; mariners; persons whose business is navigating ships\"). Because \"seamen\" includes only those who work on board a vessel, they constitute a subset of workers engaged in the maritime shipping industry. Regardless of whether \"railroad employees\" include all rail-transportation workers, the narrow definition of \"seamen\" shows that the two terms cannot share a \"common attribute\" of identifying transportation workers on an industrywide basis. Ali, 552 U. S., at 224. We therefore reject Saxon’s argument that §1 exempts virtually all employees of major transportation providers. B While Saxon defines the relevant class of workers too broadly, Southwest construes §1’s catchall category—\"any other class of workers engaged in foreign or interstate commerce\"—too narrowly. The airline argues that only workers who physically move goods or people across foreign or international boundaries—pilots, ship crews, locomotive engineers, and the like—are \"engaged in foreign or interstate commerce.\" So construed, §1 does not exempt cargo loaders because they do not physically accompany freight across state or international boundaries. Southwest’s reading rests on three arguments. None persuades us. First, taking its turn with ejusdem generis, the airline argues that because \"seamen\" are \"employed on board a vessel,\" McDermott Int’l, Inc. v. Wilander, 498 U. S. 337, 346 (1991) (emphasis added), and \"‘railroad employees’ is somewhat ambiguous,\" Brief for Petitioner 26, we should limit the exempted class of railroad employees to those who are physically on board a locomotive as it crosses state lines. Then, having limited railroad employees in that way, Southwest likewise urges us to narrow §1’s catchall provision to exclude those airline-transportation workers, like Saxon and other cargo loaders, who do not ride aboard an airplane in interstate or foreign transit. Southwest’s application of ejusdem generis is as flawed as Saxon’s. It purports to import a limitation from the definition of \"seamen\" into the definition of \"railroad employees\" and then engrafts that limit onto the catchall provision. But by conceding that \"railroad employees\" is ambiguous, Southwest sinks its own ejusdem generis argument. Again, the \"inference embodied in ejusdem generis [is] that Congress remained focused on [some] common attribute\" shared by the preceding list of specific items \"when it used the catchall phrase.\" Ali, 552 U. S., at 225. By recognizing that the term \"railroad employees\" is at most ambiguous, Southwest in effect concedes that it does not necessarily share the attribute that Southwest would like us to read into the catchall provision. Ejusdem generis neither demands nor permits that we limit a broadly worded catchall phrase based on an attribute that inheres in only one of the list’s preceding specific terms. Second, Southwest argues that cargo loading is similar to other activities that this Court has found to lack a necessary nexus to interstate commerce in other contexts. But the cases Southwest invokes all addressed activities far more removed from interstate commerce than physically loading cargo directly on and off an airplane headed out of State. In Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186 (1974), for instance, this Court held that a firm making intrastate sales of asphalt was not \"engaged in [interstate] commerce,\" id., at 194 (internal quotation marks omitted), merely because the asphalt was later used to make interstate highways, id. at 198. Being only \"perceptibly connected to . . . instrumentalities\" of interstate commerce was not enough. Ibid. Similarly, in United States v. American Building Maintenance Industries, 422 U. S. 271 (1975), this Court held that \"simply supplying localized [janitorial] services to a corporation engaged in interstate commerce does not satisfy the ‘in commerce’ requirement\" in §7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. §18. 422 U. S., at 283. In each case, the Court explained that the relevant firm was not \"engaged in\" interstate commerce because it did not perform \"activities within the flow of interstate commerce.\" Id. at 276 (internal quotation marks omitted); Gulf Oil, 419 U. S., at 195. But unlike those who sell asphalt for intrastate construction or those who clean up after corporate employees, our case law makes clear that airplane cargo loaders plainly do perform \"activities within the flow of interstate commerce\" when they handle goods traveling in interstate and foreign commerce, either to load them for air travel or to unload them when they arrive. See Burtch, 263 U. S., at 544. Third, Southwest falls back on statutory purpose. It observes that §2 of the FAA broadly requires courts to enforce arbitration agreements in any \"contract evidencing a transaction involving commerce,\" while §1 provides only a narrower exemption. This structure, in its view, demonstrates the FAA’s \"proarbitration purposes\" and counsels in favor of an interpretation that errs on the side of fewer §1 exemptions. Brief for Petitioner 16, 30–33. To be sure, we have relied on statutory purpose to inform our interpretation of the FAA when that \"purpose is readily apparent from the FAA’s text.\" AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 344 (2011). But we are not \"free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal.\" New Prime, 586 U. S., at ___ (slip op., at 14). Here, §1’s plain text suffices to show that airplane cargo loaders are exempt from the FAA’s scope, and we have no warrant to elevate vague invocations of statutory purpose over the words Congress chose. Latrice Saxon frequently loads and unloads cargo on and off airplanes that travel in interstate commerce. She therefore belongs to a \"class of workers engaged in foreign or interstate commerce\" to which §1’s exemption applies. Accordingly, we affirm the judgment of the Court of Appeals."},
{"docket_number": "20-1114", "syllabus": "The Medicare statute lays out a formula that the Department of Health and Human Services must employ annually to set reimbursement rates for certain outpatient prescription drugs provided by hospitals to Medicare patients. 42 U. S. C. §1395l(t)(14)(A)(iii). That formula affords HHS two options. Option 1 applies if HHS has conducted a survey of hospitals’ acquisition costs for each covered outpatient drug. Under this option, the agency may set reimbursement rates based on the hospitals’ \"average acquisition cost\" for each drug, and may \"vary\" the reimbursement rates \"by hospital group.\" §1395l(t)(14)(A)(iii)(I). Absent a survey, option 2 applies, and HHS must set reimbursement rates based on \"the average price\" charged by manufacturers for the drug as \"calculated and adjusted by the Secretary.\" §1395l(t)(14)(A)(iii)(II). Option 2 does not authorize HHS to vary reimbursement rates for different hospital groups. From the time these provisions took effect in 2006 until 2018, HHS did not conduct surveys of hospitals’ acquisition costs, relied on option 2, set the reimbursement rates at about 106 percent, and did not vary those rates by hospital group. For 2018, HHS again did not conduct a survey. But this time it issued a final rule establishing separate reimbursement rates for hospitals that serve low-income or rural populations through the 340B program and all other hospitals. For 2019, HHS set reimbursement rates the same way. The American Hospital Association and other interested parties challenged the 2018 and 2019 reimbursement rates in federal court. In response, HHS first contended that various statutory provisions precluded judicial review of those rates. The agency also argued that it could vary the reimbursement rates by hospital group under its option 2 authority to \"adjust\" the price-based reimbursement rates. The District Court rejected HHS’s argument that the statute precluded judicial review, concluded that HHS had acted outside its statutory authority, and remanded the case to HHS to consider an appropriate remedy. The D. C. Circuit, however, reversed. The court ruled that the statute did not preclude judicial review, and upheld HHS’s reduced reimbursement rates for 340B hospitals. Held: 1. The statute does not preclude judicial review of HHS’s reimbursement rates. Judicial review of final agency action is traditionally available unless \"a statute’s language or structure\" precludes it, Mach Mining, LLC v. EEOC, 575 U. S. 480, 486, and this Court has long recognized a \"strong presumption\" in its favor, Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U. S. ___, ___. Here, no provision in the Medicare statute precludes judicial review of the 2018 and 2019 reimbursement rates. HHS cites two nearby provisions that preclude review of the general payment methodology that HHS employs to set rates for other Medicare outpatient services. See §§1395l(t)(12)(A), (C). But HHS sets rates for outpatient prescription drugs using a different payment methodology. HHS also argues that other statutory requirements would make allowing judicial review of the 2018 and 2019 reimbursement rates impractical. Regardless, such arguments cannot override the text of the statute and the traditional presumption in favor of judicial review of administrative action. Pp. 7–9. 2. Absent a survey of hospitals’ acquisition costs, HHS may not vary the reimbursement rates only for 340B hospitals; HHS’s 2018 and 2019 reimbursement rates for 340B hospitals were therefore unlawful. The text and structure of the statute make this a straightforward case. Because HHS did not conduct a survey of hospitals’ acquisition costs, HHS acted unlawfully by reducing the reimbursement rates for 340B hospitals. HHS maintains that even when it does not conduct a survey, the agency still may \"adjus[t]\" the average price \"as necessary.\" §1395l(t)(14)(A)(iii)(II). But HHS’s power to increase or decrease the price is distinct from its power to set different rates for different groups of hospitals. Moreover, HHS’s interpretation would make little sense given the statute’s overall structure. Under HHS’s interpretation, the agency would never need to conduct a survey of acquisition costs if it could proceed under option 2 and then do everything under option 2 that it could do under option 1. That not only would render irrelevant the survey prerequisite for varying reimbursement rates by hospital group, but also would render largely irrelevant the provision of the statute that precisely details the requirements for surveys of hospitals’ acquisition costs. See §1395l(t)(14)(D). Finally, HHS’s argument that Congress could not have intended for the agency to \"overpay\" 340B hospitals for prescription drugs ignores the fact that Congress, when enacting the statute, was well aware that 340B hospitals paid less for covered prescription drugs. It may be that the reimbursement payments were intended to offset the considerable costs of providing healthcare to the uninsured and underinsured in low-income and rural communities. Regardless, this Court is not the forum to resolve that policy debate. Pp. 9–14. 967 F. 3d 818, reversed and remanded.", "opinion": "Under the Medicare statute, the Department of Health and Human Services must reimburse hospitals for certain outpatient prescription drugs that the hospitals provide to Medicare patients. HHS’s total reimbursements to hospitals for prescription drugs add up to tens of billions of dollars every year. To set the reimbursement rates for the prescription drugs, HHS has two options under the statute. First, if HHS has conducted a survey of hospitals’ acquisition costs for the drugs, HHS may set the reimbursement rates based on the hospitals’ average acquisition costs—that is, the amount that hospitals pay to acquire the prescription drugs—and may vary the reimbursement rates for different groups of hospitals. Second and alternatively, if HHS has not conducted such a survey, HHS must instead set the reimbursement rates based on the average sales price charged by manufacturers for the drugs (with certain adjustments), and HHS may not vary the reimbursement rates for different groups of hospitals. For 2018 and 2019, HHS did not conduct a survey of hospitals’ acquisition costs for outpatient prescription drugs. But HHS nonetheless substantially reduced the reimbursement rates for one group of hospitals—Section 340B hospitals, which generally serve low-income or rural communities. For those 340B hospitals, this case has immense economic consequences, about $1.6 billion annually. The question is whether the statute affords HHS discretion to vary the reimbursement rates for that one group of hospitals when, as here, HHS has not conducted the required survey of hospitals’ acquisition costs. The answer is no. We therefore reverse the judgment of the U. S. Court of Appeals for the D. C. Circuit. I A In 2003, Congress passed and President George W. Bush signed landmark legislation expanding Medicare to cover prescription drugs. See Medicare Prescription Drug, Improvement, and Modernization Act of 2003, 117 Stat. 2066, 42 U. S. C. §1395. Under that 2003 law, HHS must annually set reimbursement rates for certain outpatient prescription drugs provided by hospitals. §1395l(t)(14). The Medicare statute meticulously lays out the formula that HHS must employ to set those reimbursement rates. As relevant here, the agency’s reimbursement rate for each covered outpatient prescription drug \"shall be equal\" to one of two measures: \"(I) to the average acquisition cost for the drug for that year (which, at the option of the Secretary, may vary by hospital group (as defined by the Secretary based on volume of covered OPD services or other relevant characteristics)), as determined by the Secretary taking into account the hospital acquisition cost survey data under subparagraph (D); or \"(II) if hospital acquisition cost data are not available, the average price for the drug in the year established under section 1395u(o) of this title, section 1395w–3a of this title, or section 1395w–3b of this title, as the case may be, as calculated and adjusted by the Secretary as necessary for purposes of this paragraph.\" §1395l(t)(14)(A)(iii) (emphasis added). To simplify a bit: Congress afforded HHS two options to set the reimbursement rates for hospitals. Option 1 applies if the agency has conducted a survey of hospitals’ acquisition costs—that is, the amount that hospitals pay to acquire the prescription drugs. If the agency has conducted a survey and collected that data, HHS may set reimbursement rates based on the hospitals’ \"average acquisition cost\" for each drug. See §1395l(t)(14)(A)(iii)(I); see also §1395l(t)(14)(D) (requirements for conducting surveys of hospitals’ drug acquisition costs). Importantly for present purposes, if HHS has conducted a survey of hospitals’ acquisition costs, option 1 authorizes HHS to vary those reimbursement rates for different groups of hospitals. Option 2 applies if HHS has not conducted a survey of hospitals’ acquisition costs. In that circumstance, the agency must set reimbursement rates based on \"the average price\" charged by manufacturers for the drug, as \"calculated and adjusted by the Secretary as necessary for purposes of \" this statutory provision. §1395l(t)(14)(A)(iii)(II). The statute in turn sets \"the average price\" as 106 percent of the drug’s average sales price. See ibid. (citing §1395w– 3a). Critically, option 2 does not authorize HHS to vary reimbursement rates for different groups of hospitals. For more than a decade after those provisions took effect in 2006, HHS did not conduct a survey of hospitals’ acquisition costs. Indeed, HHS has only once attempted to conduct such a survey—in 2020, after this litigation commenced. At oral argument in this Court, the Government explained that HHS had not previously attempted to conduct such surveys because the surveys are \"very burdensome on the study takers,\" are \"very burdensome on the hospitals,\" and do not \"produce results that are all that accurate.\" Tr. of Oral Arg. 41–42. As a result, until 2018, HHS consistently relied on option 2 and set reimbursement rates for each drug based on the average-sales-price data provided by manufacturers. Every year, HHS set the reimbursement rates at about 106 percent of each covered drug’s average sales price, and HHS used the same reimbursement rates for all hospitals. In other words, until 2018, HHS never varied the reimbursement rates by hospital group. See Medicare Program: Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs, 82 Fed. Reg. 52490, 52494–52495 (2017). During its rulemaking for 2018, HHS proposed a change to reduce the reimbursement rates only for 340B hospitals. Importantly, HHS did not conduct a survey of hospital acquisition costs. As a policy matter, HHS said that its existing reimbursement rates resulted in what the agency viewed as overpayments to hospitals that serve low-income or rural populations through the federal 340B program. Federal law requires drug manufacturers to sell prescription drugs to those 340B hospitals at prices below those paid by other hospitals. See 42 U. S. C. §256b(a)(1) (setting a \"ceiling price\" that manufacturers can charge to 340B hospitals). Consistent with the Medicare statute, however, HHS historically had reimbursed 340B hospitals for covered outpatient prescription drugs at the same reimbursement rates that were set for all other hospitals. For 2018, HHS said that the uniform reimbursement rates combined with the discounted prices paid by 340B hospitals for prescription drugs meant that 340B hospitals were able to \"generate significant profits\" when they provided the prescription drugs to Medicare patients. 82 Fed. Reg. 52494. In response to HHS’s proposed change, the 340B hospitals countered that, under the Medicare statute, HHS could not single out 340B hospitals without conducting a survey of hospitals’ acquisition costs. With respect to HHS’s policy arguments, the 340B hospitals explained that the reimbursement payments for prescription drugs helped those hospitals offset the considerable costs of providing healthcare to the uninsured and underinsured in lowincome and rural communities. The 340B hospitals pointed out, moreover, that Congress had long been aware of the situation. Indeed, the hospitals claimed that Members of Congress not only were aware, but actually intended for the 340B program’s drug reimbursements to subsidize other services provided by 340B hospitals. The hospitals noted that Congress had never singled out 340B hospitals for lower Medicare reimbursements for outpatient prescription drugs. Nor, until 2018, had HHS ever done so. Furthermore, the 340B hospitals asserted that reducing their reimbursement rates for prescription drugs would force those hospitals to eliminate or dramatically curtail other crucial programs that provide a wide range of medical services in low-income and rural communities—such as treatments for cancer, mental health issues, opioid addiction, and diabetes. In the final rule for 2018, HHS decided to establish two separate reimbursement rates: one rate for non-340B hospitals and another rate for 340B hospitals. The reimbursement rate for non-340B hospitals remained at the historical rate of approximately 106 percent of the average sales price for each drug. But HHS established a substantially reduced rate for 340B hospitals—a rate equal to 77.5 percent of the average sales price for each drug. In setting that rate, HHS relied on an estimate from the Medicare Payment Advisory Commission that 340B hospitals obtained prescription drugs at an average discount of at least 22.5 percent below the average sales price charged by manufacturers. Id., at 52496, 52499. HHS estimated that the reduction in the reimbursement rates for 340B hospitals would save Medicare (and deprive 340B hospitals of ) about $1.6 billion annually, which by law would be re-allocated for other Medicare services. Id., at 52509–52510. For 2019, HHS set reimbursement rates for 340B hospitals in the same way. When setting the 2018 and 2019 reimbursement rates, HHS acknowledged that it had not conducted a survey of hospitals’ acquisition costs—the statutory prerequisite for varying the reimbursement rates by hospital group. Id., at 52496. Nonetheless, HHS pointed to its statutory authority under option 2 to \"adjust\" the average price \" ‘as necessary for purposes of ’\" this statutory provision. Id., at 52499. HHS claimed that its authority to \"adjust\" the average price for each drug also implicitly encompassed the authority to vary the reimbursement rates by hospital group. Ibid. B The American Hospital Association, along with two other hospital industry groups and several hospitals, sued in U. S. District Court to challenge HHS’s 2018 and 2019 reimbursement rates for 340B hospitals. Among other things, the Hospitals asserted that HHS did not conduct a survey of hospitals’ acquisition costs and therefore could not impose different reimbursement rates on different groups of hospitals. In response, HHS first contended that various statutory provisions precluded judicial review of the 2018 and 2019 reimbursement rates. As relevant here, HHS further argued that it could vary the reimbursement rates by hospital group under its authority to \"adjust\" the price-based reimbursement rates, even though HHS had not conducted a survey of hospitals’ acquisition costs. The District Court ruled for the Hospitals. The court rejected HHS’s argument that the statute precluded judicial review. On the merits, the court concluded that HHS had acted outside its statutory authority, and the court remanded to HHS for the agency to consider an appropriate remedy. See American Hospital Assn. v. Azar, 385 F. Supp. 3d 1 (DC 2019) (remedy); American Hospital Assn. v. Azar, 348 F. Supp. 3d 62 (DC 2018) (merits). A divided panel of the U. S. Court of Appeals for the D. C. Circuit reversed. On the question of judicial review, the court unanimously ruled that the statute did not preclude judicial review. See American Hospital Assn. v. Azar, 967 F. 3d 818, 824 (2020). On the merits, however, the court upheld HHS’s reduced reimbursement rates for 340B hospitals. Id., at 828. In dissent, Judge Pillard contended that HHS’s reduced reimbursement rates for 340B hospitals contravened the text and structure of the statute. Id., at 835. In her view, \"HHS may institute its large reductions, tailored for a distinct hospital group,\" only if the agency has conducted the required survey of hospitals’ acquisition costs. Ibid. This Court granted certiorari. 594 U. S. ___ (2021). II HHS first argues that the Medicare statute precludes judicial review of the 2018 and 2019 reimbursement rates. See 42 U. S. C. §1395l(t)(12). The Court of Appeals rejected HHS’s preclusion argument, as did the District Court. We likewise conclude that the statute does not preclude judicial review of HHS’s reimbursement rates. This Court has long recognized a \"strong presumption\" in favor of judicial review of final agency action. Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U. S. ___, ___ (2018) (slip op., at 11) (quoting Mach Mining, LLC v. EEOC, 575 U. S. 480, 489 (2015)). Judicial review of final agency action in an otherwise justiciable case is traditionally available unless \"a statute’s language or structure\" precludes judicial review. Mach Mining, 575 U. S., at 486. No provision in the Medicare statute precludes judicial review of the 2018 and 2019 reimbursement rates. Moreover, the detailed statutory formula for the reimbursement rates undermines HHS’s suggestion that Congress implicitly granted the agency judicially unreviewable discretion to set the reimbursement rates. Cf. Weyerhaeuser Co., 586 U. S., at ___−___ (slip op., at 13−14). HHS cites two provisions—§§1395l(t)(12)(A) and (C)— that preclude judicial review of HHS’s \"development of the classification system under paragraph (2)\" and \"periodic adjustments made under paragraph [(9)].\" But both of those provisions refer to the general payment methodology that HHS employs to set rates for other Medicare outpatient services. By contrast, when HHS sets rates for outpatient prescription drugs, it uses a different payment methodology— namely, the methodology specified by paragraph (14) of §1395l(t). And nothing in the statute precludes judicial review of reimbursement rates set under paragraph (14). HHS further argues that allowing judicial review of the 2018 and 2019 reimbursement rates would be impractical because the agency is required to operate the program on a budget-neutral basis. Due to that budget-neutrality requirement, HHS says that a judicial ruling invalidating the 2018 and 2019 reimbursement rates for certain hospitals would require offsets elsewhere in the program. The Hospitals respond that various potential remedies could make 340B hospitals whole for the past shortfalls without running afoul of the budget-neutrality provision. At this stage, we need not address potential remedies. Regardless, HHS’s arguments against judicial review cannot override the text of the statute and the traditional presumption in favor of judicial review of administrative action. In sum, HHS’s preclusion argument lacks any textual basis. We agree with the District Court and the Court of Appeals that the Medicare statute does not preclude judicial review of the 2018 and 2019 reimbursement rates. III We turn next to the merits. The question is this: If HHS has not conducted a survey of hospitals’ acquisition costs, may HHS still vary the reimbursement rates for outpatient prescription drugs by hospital group? The answer is no. The 2003 Medicare Act authorizes HHS to set reimbursement rates for covered outpatient prescription drugs provided by hospitals. The Act also specifies how HHS must set those reimbursement rates. 42 U. S. C. §1395l(t)(14)(A). The statute therefore reflects a careful congressional focus not only on the goal of proper reimbursement rates, but also on the appropriate means to that end. To reiterate, the statute affords HHS two options for setting reimbursement rates for outpatient drugs. Option 1 applies if HHS collects \"hospital acquisition cost survey data\" from hospitals. §1395l(t)(14)(A)(iii)(I). If the agency has conducted a survey and collected that data, then HHS may use the data to set reimbursement rates equal to \"the average acquisition cost for the drug.\" Ibid. Importantly, in that circumstance, HHS may \"vary\" reimbursement rates \"by hospital group.\" Ibid. By contrast, if HHS does not conduct a survey of hospitals’ acquisition costs and if acquisition cost data are therefore \"not available,\" HHS must instead proceed under option 2 and obtain price data from drug manufacturers. §1395l(t)(14)(A)(iii)(II). And in that circumstance, HHS must set reimbursement rates based on \"the average price for the drug\" as \"calculated and adjusted by the Secretary as necessary for purposes of \" this statutory provision. Ibid. Critically, that second option does not authorize HHS to vary reimbursement rates by hospital group. Instead, HHS must set uniform reimbursement rates for all hospitals for each covered drug, and the rates must be equal to the average price for that drug for that year. HHS’s authority to proceed under option 1 and to vary reimbursement rates by hospital group thus depends on whether HHS has obtained acquisition cost survey data from hospitals. The statute expressly authorizes HHS to vary rates by hospital group if HHS has conducted such a survey. But the statute does not authorize such a variance in rates if HHS has not conducted a survey. Cf. Babb v. Wilkie, 589 U. S. ___, ____ (2020) (slip op., at 12); Sandoz Inc. v. Amgen Inc., 582 U. S. ___, ___ (2017) (slip op., at 16); Russello v. United States, 464 U. S. 16, 23 (1983). The statute thus protects all hospitals by imposing an important procedural prerequisite—namely, a survey of hospitals’ acquisition costs for prescription drugs—before HHS may target particular groups of hospitals for lower reimbursement rates. The survey allows the agency to determine whether there is in fact meaningful, statistically significant variation among hospitals’ acquisition costs. The data regarding variation in hospitals’ acquisition costs in turn help HHS determine whether and how much it should vary the reimbursement rate among hospital groups. See §§1395l(t)(14)(D)(iii)–(iv). But absent that survey data, as Congress determined, HHS may not make \"billion-dollar decisions differentiating among particular hospital groups.\" 967 F. 3d, at 837 (Pillard, J., dissenting). In this case, all agree that HHS did not conduct a survey of hospitals’ acquisition costs. See, e.g., 82 Fed. Reg. 52501. HHS nonetheless varied the rates by hospital group, fixing a substantially lower reimbursement rate for 340B hospitals than for non-340B hospitals. Under the text and structure of the statute, this case is therefore straightforward: Because HHS did not conduct a survey of hospitals’ acquisition costs, HHS acted unlawfully by reducing the reimbursement rates for 340B hospitals. HHS maintains that there is more to the case than that straightforward analysis would suggest. HHS emphasizes that even when it does not conduct a survey of acquisition costs and thus is required to employ option 2 (based on price), the agency still may \"adjus[t]\" the average price \"as necessary for purposes of \" this statutory provision. §1395l(t)(14)(A)(iii)(II). It is true that the statutory text of option 2 affords HHS discretion to adjust the average price. The parties here vigorously debate how much HHS may adjust the price. To resolve this case, however, we need not determine the scope of HHS’s authority to adjust the price up or down. Regardless of the scope of HHS’s authority to \"adjust\" the average price up or down under the statute, the statute does not grant HHS authority to vary the reimbursement rates by hospital group unless HHS has conducted the required survey of hospitals’ acquisition costs. Under the statute, varying a rate by hospital group is not a lesserincluded power of adjusting price. Otherwise stated, HHS’s power to increase or decrease the price is distinct from its power to set different rates for different groups of hospitals. The text of option 2 confirms the point. It requires reimbursement in an \"amount\" that is equal to \"the average price for the drug in the year.\" Ibid. The text thus requires the reimbursement rate to be set drug by drug, not hospital by hospital or hospital group by hospital group. The only item that the agency is allowed to adjust is the \"average price for the drug in the year.\" Ibid. Such an adjustment can consist of moving the average-price number up or down, but it cannot consist of giving a single drug two different average prices for two different groups of hospitals. (Tellingly, before 2018, the agency never used its adjustment authority to vary reimbursement rates by hospital group.) Moreover, HHS’s contrary interpretation of the statute— and its broad understanding of its adjustment authority— would make little sense given the statute’s overall structure. To proceed under option 1 (based on cost) and vary the rate by hospital group, HHS must conduct a survey. In HHS’s view, the agency can decline to conduct a survey and can proceed under option 2, and then can still do everything under option 2 that it could do under option 1—including varying the reimbursement rates by hospital group. So under HHS’s interpretation, the agency would never need to conduct a survey of hospitals’ acquisition costs. But why, then, would Congress have constructed this elaborate statute premised on HHS’s surveys of hospitals’ acquisition costs, including specifying when HHS could vary reimbursement rates by hospital group? HHS has no good answer to that question. HHS’s interpretation not only would render irrelevant the survey prerequisite for varying reimbursement rates by hospital group, but also would render largely irrelevant the provision of the statute that precisely details the requirements for surveys of hospitals’ acquisition costs. See §1395l(t)(14)(D). We must hesitate to adopt an interpretation that would eviscerate such significant aspects of the statutory text. See, e.g., Chicago v. Fulton, 592 U. S. ___, ___ (2021) (slip op., at 5); Maine Community Health Options v. United States, 590 U. S. ___, ___ (2020) (slip op., at 16); Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 484−485 (2001). In short, the statute allows HHS to set reimbursement rates based on average price and affords the agency discretion to \"adjust\" the price up or down. But unless HHS conducts a survey of hospitals’ acquisition costs, HHS may not vary the reimbursement rates by hospital group. As a final argument, HHS insists that Congress could not have intended for the agency to \"overpay\" 340B hospitals for prescription drugs. But when enacting this statute in 2003, Congress was well aware that 340B hospitals paid less for covered prescription drugs. After all, that had been the law for the duration of the 340B program, which began in 1992. In 2003, Congress nonetheless did not see fit to differentiate 340B hospitals from other hospitals when requiring that the reimbursement rates be uniform under option 2. And for more than a decade after this statute took effect, HHS employed option 2 but did not differentiate 340B hospitals from other hospitals—an agency practice that was known in the wider hospital industry and in Congress. If HHS believes that this Medicare reimbursement program overpays 340B hospitals, it may conduct a survey of hospitals’ acquisition costs to determine whether and how much the data justify varying the reimbursement rates by hospital group—for example, reducing reimbursement rates paid to 340B hospitals as compared to other hospitals. Or if the statute’s requirement of an acquisition cost survey is bad policy or is working in unintended ways, HHS can ask Congress to change the law. Of course, if HHS went to Congress, the agency would presumably have to confront the other side of the policy story here: 340B hospitals perform valuable services for low-income and rural communities but have to rely on limited federal funding for support. As amici before this Court, many 340B hospitals contend that the Medicare reimbursement payments at issue here \"help offset the considerable costs\" that 340B providers \"incur by providing health care to the uninsured, underinsured, and those who live far from hospitals and clinics.\" Brief for 37 State and Regional Hospital Associations as Amici Curiae 7. As the 340B hospitals see it, the \"net effect\" of HHS’s 2018 and 2019 rules is \"to redistribute funds from financially strapped, public and nonprofit safety-net hospitals serving vulnerable populations—including patients without any insurance at all—to facilities and individuals who are relatively better off.\" 967 F. 3d, at 840 (Pillard, J., dissenting). In other words, in the view of those hospitals, HHS’s new rates eliminate the federal subsidy that has helped keep 340B hospitals afloat. All of which is to say that the 340B story may be more complicated than HHS portrays it. In all events, this Court is not the forum to resolve that policy debate. In sum, after employing the traditional tools of statutory interpretation, we do not agree with HHS’s interpretation of the statute. We conclude that, absent a survey of hospitals’ acquisition costs, HHS may not vary the reimbursement rates for 340B hospitals. HHS’s 2018 and 2019 reimbursement rates for 340B hospitals were therefore contrary to the statute and unlawful. We reverse the judgment of the U. S. Court of Appeals for the D. C. Circuit and remand the case for further proceedings consistent with this opinion."},
{"docket_number": "21-234", "syllabus": "When petitioner Kevin George joined the Marine Corps in 1975, he did not disclose his history of schizophrenic episodes, and a medical examination noted no mental disorders. After George suffered an episode during training, the Marines medically discharged him. George then applied to the Department of Veterans Affairs under 38 U. S. C. §1110 for veterans’ disability benefits based on his schizophrenia. A regional office of the VA denied George’s claim, and the VA’s Board of Veterans’ Appeals denied his appeal in 1977. In 2014, George asked the Board to revise its final decision. When the VA denies a benefits claim, that decision generally becomes \"final and conclusive and may not be reviewed by any other official or by any court\" after the veteran exhausts the opportunity for direct appeal. §511(a); see §7104(a). But George sought collateral review under a statutory exception allowing a veteran to seek revision of a final benefits decision at any time on grounds of \"clear and unmistakable error.\" §§5109A, 7111; see 38 CFR §§3.105, 20.1400–20.1411. In particular, he claimed that the Board clearly and unmistakably erred by applying a later invalidated regulation to deny his claim for benefits without holding the VA to its burden of proof to rebut the statutory presumption that he was in sound condition when he entered service. The Board denied George’s claim for collateral relief, and the Veterans Court affirmed. The Federal Circuit also affirmed, concluding that the application of a later invalidated regulation does not fall into the narrow category of \"clear and unmistakable error\" permitting revision of a final decision under 38 U. S. C. §§5109A and 7111. Held: The invalidation of a VA regulation after a veteran’s benefits decision becomes final cannot support a claim for collateral relief based on clear and unmistakable error. Pp. 5–12. (a) This case turns on the meaning of the 1997 statute subjecting a final veterans’ benefits decision to collateral review on grounds of \"clear and unmistakable error.\" 111 Stat. 2271 (38 U. S. C. §§5109A, 7111). No statute defines the term \"clear and unmistakable error,\" but the modifiers \"clear\" and \"unmistakable\" as well as the statutory structure suggest a narrow category. A robust regulatory backdrop fills in the details. Where Congress employs a term of art \" ‘ \"obviously transplanted from another legal source,\" ’ it ‘ \"brings the old soil with it.\" ’ \" Taggart v. Lorenzen, 587 U. S. ___, ___. That principle applies here. The Court agrees with the Federal Circuit that Congress \"codif[ied] and adopt[ed] the [clear-and-unmistakable-error] doctrine as it had developed under\" decades of prior agency practice. Cook v. Principi, 318 F. 3d 1334, 1344 (en banc). That history reveals that this category of error does not encompass a subsequent \"change in law . . . or a change in interpretation of law.\" 38 CFR §3.105 (Cum. Supp. 1963). And the invalidation of a prior regulation constitutes a \"change in interpretation of law\" under historical agency practice. Defined by this regulatory history, the statutory term \"clear and unmistakable error\" does not encompass a claim like George’s. Pp. 5–8. (b) In response, George argues that the VA has distorted the history of agency practice that the 1997 statute codified. But across a century of review for clear and unmistakable error, George can muster only one uncertain outlier case sustaining a claim that arguably resembles his, which does not move the mountain of contrary regulatory authority. He alternatively argues that the VA is wrong to call a later decision invalidating a regulation a \"change in interpretation of law.\" But that is a perfectly natural use of language. George tries to bolster his position by invoking cases explaining that a judicial decision states what the statute \"always meant,\" Rivers v. Roadway Express, Inc., 511 U. S. 298, 313, n. 12, and an unauthorized regulation is a \"‘nullity,’ \" Dixon v. United States, 381 U. S. 68, 74. But those general principles do not disturb the conclusion that the Board’s application of a thenbinding regulation is not the kind of \"clear and unmistakable error\" for which collateral relief is available under §§5109A and 7111. And that longstanding VA approach is consistent with the general rule that the new interpretation of a statute can only retroactively affect decisions still open on direct review. George also leans on what he describes as the plain meaning of the words \"clear and unmistakable error.\" But as he concedes elsewhere, the real question is not what might be called clear and unmistakable error in the abstract, but what the prevailing understanding of this term of art was when Congress codified it. The fact that Congress did not expressly enact the specific regulatory principle barring collateral relief for subsequent changes in interpretation does not mean that the principle did not carry over to the statute. Statutory \"silence\" on the details of prior regulatory practice indicates that Congress \"left the matter where it was pre-[codification].\" Kucana v. Holder, 558 U. S. 233, 250. Pp. 8–12. 991 F. 3d 1227, affirmed.", "opinion": "Veterans may claim benefits for disabilities connected to their military service subject to statutory and regulatory requirements. When the Department of Veterans Affairs (VA) denies a benefits claim, that decision generally becomes final after the veteran exhausts the opportunity for direct appeal. But a statutory exception permits the veteran to seek collateral review at any time on grounds of \"clear and unmistakable error.\" We must decide whether that exception allows relief from a VA decision applying an agency regulation that, although unchallenged at the time, is later deemed contrary to law. We hold that it does not. I A \"The law entitles veterans who have served on active duty in the United States military to receive benefits for disabilities caused or aggravated by their military service.\" Shinseki v. Sanders, 556 U. S. 396, 400 (2009); see 38 U. S. C. §1110. A veteran seeking such benefits must first file a claim with the VA. §5101(a)(1)(A). A regional office of the VA then determines whether the veteran satisfies all legal prerequisites, including the requirement that military service caused or aggravated the disability. §511(a); see 38 CFR §3.100(a) (2021). To that end, the statute governing wartime service imposes a \"[p]resumption of sound condition\": If a veteran’s disability was not noted at the time of entry into service, then the veteran is presumptively entitled to benefits unless the VA shows by a heightened burden of proof that the disability \"existed before . . . and was not aggravated by such service.\" 38 U. S. C. §1111. After applying this and other statutory and regulatory requirements, the regional office issues an initial decision granting or denying benefits. §§511(a), 5104(a). A veteran dissatisfied with this decision may challenge it through several layers of direct review. As a general rule, the veteran may appeal within one year to the VA’s Board of Veterans’ Appeals (Board). §§7105(b)(1), 7104(a). If the Board also denies relief, the veteran may seek further review outside the agency. Such review was once limited to constitutional and certain statutory claims, but since 1988 Congress has generally allowed veterans 120 days to appeal any Board decision to the Court of Appeals for Veterans Claims (Veterans Court). See Henderson v. Shinseki, 562 U. S. 428, 432, and n. 1 (2011); §§7252(a), 7261(a), 7266(a). A veteran dissatisfied with that court’s decision may seek review of any legal issue in the Federal Circuit and ultimately in this Court. §7292; 28 U. S. C. §1254(1). After this direct appeal process, the benefits decision generally becomes \"final and conclusive and may not be reviewed by any other official or by any court.\" 38 U. S. C. §511(a); see §7104(a). Still, the veteran enjoys a few limited options for seeking collateral review in exceptional circumstances. E.g., §5108(a) (supplemental claim based on new and relevant evidence); §503(a) (discretionary relief based on administrative error); §5110(g) (increase of benefits based on subsequent liberalizing legal change). Cite as: 596 U. S. ____ (2022) This case concerns one such exception to finality: At any time, a veteran may ask the Board or regional office to revise a final benefits decision on grounds of \"clear and unmistakable error.\" §5109A (regional office); §7111 (the Board); 38 CFR §§3.105, 20.1400–20.1411 (2021). This form of collateral review was first adopted by regulation roughly 100 years ago. Since at least 1928, the VA and its predecessor agencies have allowed revision of an otherwise final decision when \"obviously warranted by a clear and unmistakable error.\" Veterans’ Bureau Reg. No. 187, pt. 1, §7155 (1928); see 38 CFR §3.105(a) (Cum. Supp. 1963) (\"Previous determinations . . . will be accepted as correct in the absence of clear and unmistakable error\"). In 1997, Congress codified this form of review in the statute we interpret today. 111 Stat. 2271. B Kevin George joined the Marine Corps in 1975 after experiencing multiple schizophrenic episodes. He did not initially disclose that history, and a medical examination noted no mental disorders at the time he entered service. But less than a week into training, George had another episode and was hospitalized. A few months later, the Navy’s Central Physical Evaluation Board found that his schizophrenia made him unfit for duty and was not aggravated by service. App. to Brief for Petitioner 12a–15a. George was then medically discharged. Later that year, George applied for veterans’ disability benefits based on his schizophrenia. A VA regional office denied his claim after concluding that his condition predated his military service and was not aggravated by it. The Board agreed and denied George’s appeal in 1977. In so ruling, neither the regional office nor the Board expressly discussed the VA’s burden of proof under the presumption of sound condition. In 2014, George asked the Board to revise that final decision on grounds of \"clear and unmistakable error.\" 38 U. S. C. §7111. In particular, he claimed that the Board erred by applying a later invalidated regulation to deny his claim for benefits without holding the VA to its full burden of proof to rebut the statutory presumption of sound condition. For more than 40 years, including George’s time in service, a VA regulation provided that the agency could rebut the presumption simply by showing, according to a heightened burden of proof, that a disability predated service. See 26 Fed. Reg. 1580 (1961); 38 CFR §3.304(b) (1976). In 2003, however, the VA concluded that this regulation conflicted with the statute, which it now understood to require an additional showing (by the same burden of proof ): that the veteran’s condition was not later aggravated by service. VA Op. Gen. Counsel Precedent (VA Op.) 3–2003 (July 16, 2003). The VA recognized that it seemed \"illogical\" to require an additional showing with \"no obvious bearing upon the presumed fact of whether the veteran was in sound condition when he or she entered service.\" Id., at 8. But it explained that the statutory text nonetheless \"compel[led]\" this reading. Ibid. Based on this about-face, the VA confessed error in a pending case applying the regulation, and the Federal Circuit agreed that this \"difficult to parse\" and \"somewhat self-contradictory\" statute rendered the regulation \"incorrect.\" Wagner v. Principi, 370 F. 3d 1089, 1093, 1097 (2004). The VA ultimately amended the regulation to resolve the issue going forward. 70 Fed. Reg. 23027 (2005). The Board denied George’s claim for collateral relief, and the Veterans Court affirmed. The Federal Circuit also affirmed, concluding that the application of a later invalidated regulation does not fall into the narrow category of \"clear and unmistakable error\" permitting revision of a final decision under 38 U. S. C. §§5109A and 7111. 991 F. 3d 1227 (2021). We granted certiorari. 595 U. S. ___ (2022). II A This case turns on the meaning of the 1997 statute subjecting a final veterans’ benefits decision to collateral review on grounds of \"clear and unmistakable error.\" 111 Stat. 2271 (38 U. S. C. §§5109A, 7111). Neither this statute nor any other defines this term—indeed, it appears nowhere else in the entire United States Code. The modifiers \"clear\" and \"unmistakable\" indicate that this is a narrow category excluding some forms of error cognizable in other contexts. The statutory structure similarly suggests a narrow category because this form of review functions as a limited exception to finality, in contrast to the broad provision of one direct appeal for \"[a]ll questions\" in a case. §7104(a). But beyond those general contours, the statute itself does not identify the specific ways in which this category is narrower than garden-variety \"error.\" Fortunately, a robust regulatory backdrop fills in the details. Where Congress employs a term of art \"‘\"obviously transplanted from another legal source,\"’ it ‘\"brings the old soil with it.\"’\" Taggart v. Lorenzen, 587 U. S. ___, ___ (2019) (slip op., at 5). That principle applies here. In 1997, Congress used an unusual term that had a long regulatory history in this very context. It enacted no new \"definition\" or other provision indicating any departure from the \"same meaning\" that the VA had long applied. Hall v. Hall, 584 U. S. ___, ___ (2018) (slip op., at 13). We therefore agree with the Federal Circuit that Congress \"codif[ied] and adopt[ed] the [clear-and-unmistakable-error] doctrine as it had developed under\" prior agency practice. Cook v. Principi, 318 F. 3d 1334, 1344 (2002) (en banc). That longstanding VA practice reveals several respects in which the clearand-unmistakable category is a \"very specific and rare kind of error\" narrower than error simpliciter. 38 CFR §20.1403(a). Most important for present purposes, the history reveals that this category of error does not encompass a subsequent \"change in law . . . or a change in interpretation of law.\" 38 CFR §3.105 (Cum. Supp. 1963). And for good reason: During the many years when clear and unmistakable error was purely a creature of regulation, the governing statutes generally did not allow \"[n]ew or recently developed facts or changes in the law\" to \"provide a basis for revising a finally decided case.\" Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc) (citing 38 U. S. C. §§5108, 7104). To stay within that statutory constraint, authorities dating back to 1928 confirm that \"[a] determination that there was ‘clear and unmistakable error’ must be based on the record and the law that existed at the time of the prior [VA] decision.\" 3 Vet. App., at 314 (emphasis added); see 38 CFR §20.1403(b) (similar); Veterans’ Bureau Reg. No. 187, pt. 1, §7155 (requiring \"clear and unmistakable error shown by the evidence in file at the time the prior decision was rendered\"). So, for example, the VA’s failure to apply an existing regulation to undisputed record evidence could constitute clear and unmistakable error. E.g., Myler v. Derwinski, 1 Vet. App. 571, 574–575 (1991). But a subsequent legal change could not, because \"only the ‘law that existed at the time’ of the prior adjudication . . . can be considered\" in this posture. Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Or as the Veterans Court summed up, shortly before the enactment of the 1997 statute: A \"new interpretation of law . . . from a case decided in 1993 could not possibly be the basis of [clear and unmistakable] error in 1969,\" as \"a simple recitation of the time sequence\" should \"make . . . clear.\" Berger v. Brown, 10 Vet. App. 166, 170 (1997). The invalidation of a prior regulation constitutes a \"change in interpretation of law\" under historical agency practice. Drawing on decades of history, the VA succinctly explained nearly 30 years ago that review for clear and unmistakable error provides \"no authority . . . for retroactive payment of benefits when,\" as in this case, a court later \"invalidates a VA interpretation or regulation\" after a benefits decision becomes final. VA Op. 9–94, ¶6, p. 5 (Mar. 25, 1994). Under this practice and the statute codifying it, the Board is instead simply \"performing its assigned task when it applies a regulation as promulgated by the [VA],\" because that regulation legally binds agency adjudicators. VA Op. 25–95, ¶4, p. 2 (Dec. 6, 1995); see 38 U. S. C. §7104(c) (\"The Board shall be bound in its decisions by the regulations of the Department\"). To be sure, when a previously applied regulation is later invalidated, relief may be warranted for \"error\" in a case still on direct appeal. E.g., Wagner, 370 F. 3d, at 1092, 1097. But on collateral review of a final decision, the more limited category of \"[c]lear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.\" 38 CFR §20.1403(e).1 The applicability of this principle does not depend on the reason why the agency changed course: A change based on the conclusion that a prior interpretation was wrong is still a changed interpretation. Defined by this regulatory history, the statutory term \"clear and unmistakable error\" does not encompass a claim like George’s. When the Board decided George’s appeal in 1977, it followed the then-applicable 1961 regulation, as it was statutorily obligated to do. See 38 U. S. C. §7104(c). Decades later, the VA and the Federal Circuit rejected that regulation based on a new interpretation of the \"sound condition\" provision. We express no view on the merits of that change in interpretation, which are not before us. But because it is a change, it cannot support a claim of clear and unmistakable error in the Board’s routine 1977 application of the prior regulation. Put differently, the correct application of a binding regulation does not constitute \"clear and unmistakable error\" at the time a decision is rendered, even if that regulation is subsequently invalidated. B 1 George offers several responses. He generally concedes the premise that the 1997 statute codified the longstanding regulatory practice defining \"clear and unmistakable error.\" He takes issue primarily with the conclusion that this practice forbids his claim. In George’s view, the VA has \"distorted\" its own history by glossing over a handful of \"pre-legislation Veterans Court opinions\" that he claims \"point in [his] direction.\" Brief for Petitioner 26, 41. But across a century of review for clear and unmistakable error, George can muster only one case sustaining a claim that arguably resembles his. See Look v. Derwinski, 2 Vet. App. 157 (1992) (approving collateral relief on two grounds, including a later invalidated regulation, without discussing the change-in-interpretation principle). And even that case is ambiguous, as portions of the opinion may instead \"suggest that the [subsequent] invalidation of regulations does not have retroactive effect in ‘finally’ disallowed claims.\" VA Op. 9–94, ¶5, p. 4 (emphasis added) (citing Look, 2 Vet. App., at 164). Regardless, the case remains an outlier that \"no court has cited\" on this point \"[i]n the 30 years since,\" as the Government notes without rebuttal from George. Brief for Respondent 38. This is thin stuff. One uncertain outlier does not come close to moving the mountain of contrary regulatory authority. See supra, at 5–7. When we say that a statute adopts a term of art, we mean that it captures \"the state of [a] body of law,\" not every errant decision of arguable relevance. Federal Republic of Germany v. Philipp, 592 U. S. ___, ___ (2021) (slip op., at 9). Even if George could pluck from the crowd a few stray decisions pointing his way, that would not show a \"‘settled’ meaning\" that we can infer \"Congress had . . . in mind when it enacted\" this statute. Return Mail, Inc. v. Postal Service, 587 U. S. ___, ___ (2019) (slip op., at 15). Instead, the mainstream of agency practice settles that a clear-and-unmistakable-error claim cannot rest on a subsequent change in interpretation. George alternatively argues that the VA erred in applying this principle to his situation. In his view, it is wrong to describe a later decision invalidating a regulation as a \"change in interpretation of law.\" But we think that is a perfectly natural way to characterize a decision announcing a new reading of a statute—much as the VA and Federal Circuit did in the decisions on which George now relies. VA Op. 3–2003, ¶¶3, 8, pp. 2, 5 (adopting a new \"interpretation\" to replace the prior \"interpretation reflected in VA’s regulations\"); Wagner, 370 F. 3d, at 1092 (discussing that \"change in agency interpretation\"). We have occasionally used similar language ourselves. E.g., Gonzalez v. Crosby, 545 U. S. 524, 536–537 (2005) (referring to \"[t]he change in the law worked by\" our precedent \"interpret[ing] the AEDPA statute of limitations\"). As the Federal Circuit has explained, a lack of \"accuracy\" in a prior statutory interpretation \"does not negate the fact that\" it is an \"initial interpretation.\" Jordan v. Nicholson, 401 F. 3d 1296, 1298 (2005). In short, a misinterpretation is still an interpretation, and a correction of that interpretation is a change. So the VA’s application of the change-in-interpretation label to claims like George’s hardly reflects an \"atypical\" use of language, despite his arguments to the contrary. Brief for Petitioner 18. Ordinary language aside, George tries to bolster his position with analogies to precedent from other contexts. He invokes an array of cases explaining that a judicial decision states what the statute \"always meant,\" Rivers v. Roadway Express, Inc., 511 U. S. 298, 313, n. 12 (1994), and an unauthorized regulation is a \"‘nullity,’\" Dixon v. United States, 381 U. S. 68, 74 (1965). True enough. Those general principles, however, do not dispose of the issue before us. Assume George is right that the \"sound condition\" provision always required the VA to show that the veteran’s condition was not later aggravated by service and that the 1961 regulation conflicted with that requirement. We would still have to decide whether the Board’s application of that binding regulation is the kind of \"clear and unmistakable error\" for which collateral relief is available under 38 U. S. C. §§5109A and 7111. For the reasons we have explained, it is not. And while George suggests otherwise, there is nothing incongruous about a system in which this kind of error—the application of a since-rejected statutory interpretation— cannot be remedied after final judgment. On the contrary, and as the lower courts have explained, the VA’s longstanding approach is consistent with the general rule that \"[t]he new interpretation of a statute can only retroactively [a]ffect decisions still open on direct review.\" Disabled American Veterans v. Gober, 234 F. 3d 682, 698 (CA Fed. 2001) (citing Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 97 (1993)); see also Smith v. West, 11 Vet. App. 134, 138 (1998) (\"‘New legal principles, even when applied retroactively, do not apply to cases already closed’\" (quoting Reynoldsville Casket Co. v. Hyde, 514 U. S. 749, 758 (1995); alteration omitted)). That limitation serves important interests in finality, preventing narrow avenues for collateral review from ballooning into \"substitute[s] for ordinary error correction through appeal.\" Harrington v. Richter, 562 U. S. 86, 102–103 (2011); see also United Student Aid Funds, Inc. v. Espinosa, 559 U. S. 260, 270 (2010) (an \"exception to finality\" should not be read to \"swallow the rule\"). So the VA’s approach to collateral relief is not unusual. Here as elsewhere, litigants must overcome a \"stron[g]\" \"presumption of validity\" when \"otherwise final decisions . . . are collaterally attacked.\" Fugo v. Brown, 6 Vet. App. 40, 44 (1993).2 2 George also leans on what he describes as \"the plain meaning of th[e] words\" clear and unmistakable error. Reply Brief 2. As he puts it: \"Looking at the 1977 Board’s decision today, the legal error is clear. It is unmistakable.\" Id., at 1. (This is the thrust of JUSTICE GORSUCH’s position too. See post, at 3–5 (dissenting opinion).) We share the Government’s doubt about how natural it is to say that the Board \"commit[ted] ‘clear and unmistakable error’ by faithfully applying a VA regulation that was found to be invalid more than 25 years later.\" Brief for Respondent 33. More fundamentally, though, this argument is inconsistent with George’s well-taken concessions elsewhere that \"the [clear and-unmistakable-error] statutes track preexisting Veterans Court case law\" and other agency practice defining a \"deeply rooted\" regulatory standard. Reply Brief 8; Brief for Petitioner 6. The real question is not what might be called clear and unmistakable error in the abstract, but what was the \"prevailing understanding\" of this term of art \"under the law that Congress looked to when codifying\" it. Reply Brief 2, 4; see West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 92, n. 5 (1991) (terms of art \"depart from ordinary meaning\"). To the extent they diverge, the historical meaning controls. More modestly, George seeks to distinguish the statutory meaning from the prior practice on just one point. Because Congress did not expressly enact the specific regulatory principle barring collateral relief for subsequent changes in interpretation, he insists that the principle did not carry over to the statute. But this argument, too, misses the mark. The point of the old-soil principle is that \"when Congress employs a term of art,\" that usage itself suffices to \"‘adop[t] the cluster of ideas that were attached to each borrowed word’\" in the absence of indication to the contrary. FAA v. Cooper, 566 U. S. 284, 292 (2012). Here, the governing statute \"is silent\" on a host of matters ranging from the definition of clear and unmistakable error to \"the specific procedures that govern a [collateral] claim.\" Disabled American Veterans, 234 F. 3d, at 694, 696 (citing 38 U. S. C. §7111). And we take the statutory \"silence\" on the details of prior regulatory practice to \"l[eave] the matter where it was pre-[codification].\" Kucana v. Holder, 558 U. S. 233, 250 (2010). We decline George’s invitation to gerrymander out this one feature of the prior practice. The invalidation of a VA regulation after a veteran’s benefits decision becomes final cannot support a claim for collateral relief based on clear and unmistakable error. We affirm the judgment of the Court of Appeals."},
{"docket_number": "21-328", "syllabus": "Petitioner Robyn Morgan worked as an hourly employee at a Taco Bell franchise owned by respondent Sundance. When applying for the job, Morgan signed an agreement to arbitrate any employment dispute. Despite that agreement, Morgan filed a nationwide collective action asserting that Sundance had violated federal law regarding overtime payment. Sundance initially defended against the lawsuit as if no arbitration agreement existed, filing a motion to dismiss (which the District Court denied) and engaging in mediation (which was unsuccessful). Then—nearly eight months after Morgan filed the lawsuit— Sundance moved to stay the litigation and compel arbitration under the Federal Arbitration Act (FAA). Morgan opposed, arguing that Sundance had waived its right to arbitrate by litigating for so long. The courts below applied Eighth Circuit precedent, under which a party waives its right to arbitration if it knew of the right; \"acted inconsistently with that right\"; and \"prejudiced the other party by its inconsistent actions.\" Erdman Co. v. Phoenix Land & Acquisition, LLC, 650 F. 3d 1115, 1117. The prejudice requirement is not a feature of federal waiver law generally. The Eighth Circuit adopted that requirement because of the \"federal policy favoring arbitration.\" Id., at 1120. Other courts have rejected such a requirement. This Court granted certiorari to resolve the split over whether federal courts may adopt an arbitration-specific waiver rule demanding a showing of prejudice. Held: The Eighth Circuit erred in conditioning a waiver of the right to arbitrate on a showing of prejudice. Federal courts have generally resolved cases like this one as a matter of federal law, using the terminology of waiver. The parties dispute whether that framework is correct. Assuming without deciding that it is, federal courts may not create arbitration-specific variants of federal procedural rules, like those concerning waiver, based on the FAA’s \"policy favoring arbitration.\" Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24. That policy \"is merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.\" Granite Rock Co. v. Teamsters, 561 U. S. 287, 302 (internal quotation marks omitted). Accordingly, a court must hold a party to its arbitration contract just as the court would to any other kind. But a court may not devise novel rules to favor arbitration over litigation. See Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 218–221. The federal policy is about treating arbitration contracts like all others, not about fostering arbitration. The text of the FAA makes clear that courts are not to create arbitration-specific procedural rules like the one here. Section 6 of the FAA provides that any application under the statute—including an application to stay litigation or compel arbitration—\"shall be made and heard in the manner provided by law for the making and hearing of motions\" (unless the statute says otherwise). A directive to treat arbitration applications \"in the manner provided by law\" for all other motions is simply a command to apply the usual federal procedural rules, including any rules relating to a motion’s timeliness. Because the usual federal rule of waiver does not include a prejudice requirement, Section 6 instructs that prejudice is not a condition of finding that a party waived its right to stay litigation or compel arbitration under the FAA. Stripped of its prejudice requirement, the Eighth Circuit’s current waiver inquiry would focus on Sundance’s conduct. Did Sundance knowingly relinquish the right to arbitrate by acting inconsistently with that right? On remand, the Court of Appeals may resolve that question, or determine that a different procedural framework (such as forfeiture) is appropriate. The Court’s sole holding today is that it may not make up a new procedural rule based on the FAA’s \"policy favoring arbitration.\" Pp. 4–7. 992 F. 3d 711, vacated and remanded.", "opinion": "When a party who has agreed to arbitrate a dispute instead brings a lawsuit, the Federal Arbitration Act (FAA) entitles the defendant to file an application to stay the litigation. See 9 U. S. C. §3. But defendants do not always seek that relief right away. Sometimes, they engage in months, or even years, of litigation—filing motions to dismiss, answering complaints, and discussing settlement— before deciding they would fare better in arbitration. When that happens, the court faces a question: Has the defendant’s request to switch to arbitration come too late? Most Courts of Appeals have answered that question by applying a rule of waiver specific to the arbitration context. Usually, a federal court deciding whether a litigant has waived a right does not ask if its actions caused harm. But when the right concerns arbitration, courts have held, a finding of harm is essential: A party can waive its arbitration right by litigating only when its conduct has prejudiced the other side. That special rule, the courts say, derives from the FAA’s \"policy favoring arbitration.\" We granted certiorari to decide whether the FAA authorizes federal courts to create such an arbitration-specific procedural rule. We hold it does not. I Petitioner Robyn Morgan worked as an hourly employee at a Taco Bell franchise owned by respondent Sundance. When applying for the job, she signed an agreement to \"use confidential binding arbitration, instead of going to court,\" to resolve any employment dispute. App. 77. Despite that agreement, Morgan brought a nationwide collective action against Sundance in federal court for violations of the Fair Labor Standards Act. Under that statute, employers must pay overtime to covered employees who work more than 40 hours in a week. See 29 U. S. C. §207(a). Morgan alleged that Sundance routinely flouted the Act—most notably, by recording hours worked in one week as instead worked in another to prevent any week’s total from exceeding 40. See App. 12. Sundance initially defended itself against Morgan’s suit as if no arbitration agreement existed. Sundance first moved to dismiss the suit as duplicative of a collective action previously brought by other Taco Bell employees. In that motion, Sundance suggested that Morgan either \"join\" the earlier suit or \"refile her claim on an individual basis.\" Id., at 39. But Morgan declined the invitation to litigate differently, and the District Court denied Sundance’s motion. Sundance then answered Morgan’s complaint, asserting 14 affirmative defenses—but none mentioning the arbitration agreement. Soon afterward, Sundance met in a joint mediation with the named plaintiffs in both collective actions. The other suit settled, but Morgan’s did not. She and Sundance began to talk about scheduling the rest of the litigation. And then—nearly eight months after the suit’s filing— Sundance changed course. It moved to stay the litigation and compel arbitration under Sections 3 and 4 of the FAA. See §3 (providing for a stay of judicial proceedings on \"issue[s] referable to arbitration\"); §4 (providing for an order \"directing the parties to proceed to arbitration\"). Morgan opposed the motion, arguing that Sundance had waived its right to arbitrate by litigating for so long. Sundance responded that it had asserted its right as soon as this Court’s decision in Lamps Plus, Inc. v. Varela, 587 U. S. ___ (2019), clarified that the arbitration would proceed on a bilateral (not collective) basis. The courts below applied Eighth Circuit precedent to decide the waiver issue. See 992 F. 3d 711, 713–715 (2021); No. 4:18–cv–316 (ND Iowa, June 28, 2019), App. to Pet. for Cert. 21–33. Under that Circuit’s test, a party waives its contractual right to arbitration if it knew of the right; \"acted inconsistently with that right\"; and—critical here—\"prejudiced the other party by its inconsistent actions.\" Erdman Co. v. Phoenix Land & Acquisition, LLC, 650 F. 3d 1115, 1117 (CA8 2011). The prejudice requirement, as explained later, is not a feature of federal waiver law generally. See infra, at 5. The Eighth Circuit adopted the requirement in the arbitration context because of the \"federal policy favoring arbitration.\" Erdman, 650 F. 3d, at 1120; see id., at 1117. Although the District Court found the prejudice requirement satisfied, the Court of Appeals disagreed and sent Morgan’s case to arbitration. The panel majority reasoned that the parties had not yet begun formal discovery or contested any matters \"going to the merits.\" 992 F. 3d, at 715. Judge Colloton dissented. He argued that Sundance had \"led Morgan to waste time and money\" opposing the motion to dismiss and \"engaging in a fruitless mediation.\" Id., at 717. More fundamentally, he raised doubts about the Eighth Circuit’s prejudice requirement. Outside the arbitration context, Judge Colloton observed, prejudice is not needed for waiver. See id., at 716. In line with that general principle, he continued, \"some circuits allow a finding of waiver of arbitration without a showing of prejudice.\" Id., at 716–717. We granted certiorari, 595 U. S. ___ (2021), to resolve that circuit split. Nine circuits, including the Eighth, have invoked \"the strong federal policy favoring arbitration\" in support of an arbitration-specific waiver rule demanding a showing of prejudice.1 Two circuits have rejected that rule.2 We do too. II We decide today a single issue, responsive to the predominant analysis in the Courts of Appeals, rather than to all the arguments the parties have raised. In their briefing, the parties have disagreed about the role state law might play in resolving when a party’s litigation conduct results in the loss of a contractual right to arbitrate. The parties have also quarreled about whether to understand that inquiry as involving rules of waiver, forfeiture, estoppel, laches, or procedural timeliness. We do not address those issues. The Courts of Appeals, including the Eighth Circuit, have generally resolved cases like this one as a matter of federal law, using the terminology of waiver. For today, we assume without deciding they are right to do so. We consider only the next step in their reasoning: that they may create arbitration-specific variants of federal procedural rules, like those concerning waiver, based on the FAA’s \"policy favoring arbitration.\" Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983). They cannot. For that reason, the Eighth Circuit was wrong to condition a waiver of the right to arbitrate on a showing of prejudice. Outside the arbitration context, a federal court assessing waiver does not generally ask about prejudice. Waiver, we have said, \"is the intentional relinquishment or abandonment of a known right.\" United States v. Olano, 507 U. S. 725, 733 (1993) (internal quotation marks omitted). To decide whether a waiver has occurred, the court focuses on the actions of the person who held the right; the court seldom considers the effects of those actions on the opposing party. That analysis applies to the waiver of a contractual right, as of any other. As Judge Colloton noted in dissent below, a contractual waiver \"normally is effective\" without proof of \"detrimental reliance.\" 992 F. 3d, at 716; see Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F. 3d 388, 390 (CA7 1995) (Posner, C. J., for the Court). So in demanding that kind of proof before finding the waiver of an arbitration right, the Eighth Circuit applies a rule found nowhere else—consider it a bespoke rule of waiver for arbitration. The Eighth Circuit’s arbitration-specific rule derives from a decades-old Second Circuit decision, which in turn grounded the rule in the FAA’s policy. See Carcich v. Rederi A/B Nordie, 389 F. 2d 692, 696 (CA2 1968); Erdman, 650 F. 3d, at 1120, n. 4 (\"trac[ing] the origins of [the Eighth Circuit’s] prejudice requirement to Carcich\"). \"[T]here is,\" the Second Circuit declared, \"an overriding federal policy favoring arbitration.\" Carcich, 389 F. 3d, at 696. For that reason, the court held, waiver of the right to arbitrate \"is not to be lightly inferred\": \"[M]ere delay\" in seeking a stay of litigation, \"without some resultant prejudice\" to the opposing party, \"cannot carry the day.\" Ibid. Over the years, both that rule and its reasoning spread. Circuit after circuit (with just a couple of holdouts) justified adopting a prejudice requirement based on the \"liberal national policy favoring arbitration.\" Carolina Throwing Co. v. S & E Novelty Corp., 442 F. 2d 329, 331 (CA4 1971) (per curiam); see, e.g., PaineWebber Inc. v. Faragalli, 61 F. 3d 1063, 1068–1069 (CA3 1995); Shinto Shipping Co. v. Fibrex & Shipping Co., Inc., 572 F. 2d 1328, 1330 (CA9 1978). But the FAA’s \"policy favoring arbitration\" does not authorize federal courts to invent special, arbitration-preferring procedural rules. Moses H. Cone, 460 U. S., at 24. Our frequent use of that phrase connotes something different. \"Th[e] policy,\" we have explained, \"is merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.\" Granite Rock Co. v. Teamsters, 561 U. S. 287, 302 (2010) (internal quotation marks omitted). Or in another formulation: The policy is to make \"arbitration agreements as enforceable as other contracts, but not more so.\" Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 404, n. 12 (1967). Accordingly, a court must hold a party to its arbitration contract just as the court would to any other kind. But a court may not devise novel rules to favor arbitration over litigation. See Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 218–221 (1985). If an ordinary procedural rule—whether of waiver or forfeiture or what-have-you—would counsel against enforcement of an arbitration contract, then so be it. The federal policy is about treating arbitration contracts like all others, not about fostering arbitration. See ibid.; National Foundation for Cancer Research v. A. G. Edwards & Sons, Inc., 821 F. 2d 772, 774 (CADC 1987) (\"The Supreme Court has made clear\" that the FAA’s policy \"is based upon the enforcement of contract, rather than a preference for arbitration as an alternative dispute resolution mechanism\"). And indeed, the text of the FAA makes clear that courts are not to create arbitration-specific procedural rules like the one we address here. Section 6 of the FAA provides that any application under the statute—including an application to stay litigation or compel arbitration—\"shall be made and heard in the manner provided by law for the making and hearing of motions\" (unless the statute says otherwise). A directive to a federal court to treat arbitration applications \"in the manner provided by law\" for all other motions is simply a command to apply the usual federal procedural rules, including any rules relating to a motion’s timeliness. Or put conversely, it is a bar on using custom-made rules, to tilt the playing field in favor of (or against) arbitration. As explained above, the usual federal rule of waiver does not include a prejudice requirement. So Section 6 instructs that prejudice is not a condition of finding that a party, by litigating too long, waived its right to stay litigation or compel arbitration under the FAA. Stripped of its prejudice requirement, the Eighth Circuit’s current waiver inquiry would focus on Sundance’s conduct. Did Sundance, as the rest of the Eighth Circuit’s test asks, knowingly relinquish the right to arbitrate by acting inconsistently with that right? See supra, at 3. On remand, the Court of Appeals may resolve that question, or (as indicated above) determine that a different procedural framework (such as forfeiture) is appropriate. See supra, at 4. Our sole holding today is that it may not make up a new procedural rule based on the FAA’s \"policy favoring arbitration.\" For the reasons stated, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."},
{"docket_number": "20-1472", "syllabus": "In 2015, the Internal Revenue Service notified Boechler, P.C., a North Dakota law firm, of a discrepancy in its tax filings. When Boechler did not respond, the IRS assessed an \"intentional disregard\" penalty and notified Boechler of its intent to levy Boechler’s property to satisfy the penalty. See 26 U. S. C. §§6330(a), 6721(a)(2), (e)(2)(A). Boechler requested and received a \"collection due process hearing\" before the IRS’s Independent Office of Appeals pursuant to §6330(b), but the Office sustained the proposed levy. Under §6330(d)(1), Boechler had 30 days to petition the Tax Court for review. Boechler filed its petition one day late. The Tax Court dismissed the petition for lack of jurisdiction and the Eighth Circuit affirmed, agreeing that §6330(d)(1)’s 30- day filing deadline is jurisdictional and thus cannot be equitably tolled. Held: Section 6330(d)(1)’s 30-day time limit to file a petition for review of a collection due process determination is a nonjurisdictional deadline subject to equitable tolling. Pp. 2–11. (a) Not all procedural requirements are jurisdictional. Many simply instruct \"parties [to] take certain procedural steps at certain specified times\" without conditioning a court’s authority to hear the case on compliance with those steps. Henderson v. Shinseki, 562 U. S. 428, 435. The distinction matters, as jurisdictional requirements cannot be waived or forfeited, must be raised by courts sue sponte, and do not allow for equitable exceptions. Id., at 434–435; Sebelius v. Auburn Regional Medical Center, 568 U. S 145, 154. As such, a procedural requirement is jurisdictional only if Congress \"clearly states\" that it is. Arbaugh v. Y & H Corp., 546 U. S. 500, 515. This case therefore turns on whether Congress has clearly stated that §6330(d)(1)’s deadline is jurisdictional. Section 6330(d)(1) provides that a \"person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).\" Whether this provision limits the Tax Court’s jurisdiction to petitions filed within the 30-day timeframe depends on the meaning of \"such matter,\" the phrase marking the bounds of the Tax Court’s jurisdiction. Boechler contends that it refers only to the immediately preceding phrase: a \"petition [to] the Tax Court for review of such determination,\" making the filing deadline independent of the jurisdictional grant. The Commissioner, by contrast, argues that \"such matter\" refers to the entire first clause of the sentence, sweeping in the deadline and granting jurisdiction only over petitions filed within that time, making the deadline jurisdictional. The text does not clearly mandate the jurisdictional reading. It is hard to see how it could, given that \"such matter\" lacks a clear antecedent. Moreover, Boechler’s interpretation has a small edge under the last-antecedent rule, which instructs that the correct antecedent is usually the closest reasonable one. There are also other plausible ways to read \"such matter.\" For example, \"such matter\" might refer to \"such determination\" or the preceding subsection’s list of \"[m]atters\" that may be considered during the collection due process hearing, see §6330(c), but neither possibility ties the Tax Court’s jurisdiction to the filing deadline. And it is difficult to make the case that the jurisdictional reading is clear where multiple plausible, nonjurisdictional interpretations exist. Nothing else in the provision’s text or structure advances the case for jurisdictional clarity. Finally, other tax provisions enacted around the same time as §6330(d)(1) much more clearly link their jurisdictional grants to a filing deadline—see §§6404(g)(1), 6015(e)(1)(A)—accentuating the lack of comparable clarity in §6330(d)(1). Pp. 2–6. (b) The Commissioner’s counterarguments fall short. In this context, it is not enough that his interpretation of the statute is plausible, or that some might even think it better than Boechler’s. To satisfy the clear-statement rule, the Commissioner’s interpretation must be clear, and it is not. A requirement \"does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions.\" Auburn, 568 U. S., at 155. Rather than proximity, what is needed is a clear tie between the deadline and the jurisdictional grant. The Commissioner also contends that a neighboring provision, §6330(e)(1), clarifies the jurisdictional effect of §6330(d)(1)’s filing deadline. Section 6330(e)(1) plainly conditions the Tax Court’s jurisdiction to grant an injunction to enforce the suspension of levy actions during collection due process hearings on a timely filing under §6330(d)(1). But, if anything, §6330(e)(1)’s clear jurisdictional statement only highlights the lack of such clarity in §6330(d)(1). Finally, the Commissioner insists that §6330(d)(1)’s filing deadline is jurisdictional because it was enacted at a time when Congress was aware of lower court cases that had held that an analogous tax provision, §6213(a), is jurisdictional. Those lower court cases, however, almost all predate this Court’s effort to \"bring some discipline\" to the use of the term \"jurisdictional.\" Henderson, 562 U. S., at 435. Pp. 6–8. (c) Nonjurisdictional limitations periods are presumptively subject to equitable tolling, Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95–96, and nothing rebuts the presumption here. Section 6330(d)(1) does not expressly prohibit equitable tolling, directs its 30- day time limit at the taxpayer, not the court, and appears in a section of the Tax Code that is particularly protective of taxpayers, see Auburn, 568 U. S., at 160. The Commissioner invokes United States v. Brockamp, 519 U. S. 347, which held equitable tolling inapplicable to §6511’s deadline for taxpayers to file refund claims, but that case is inapposite. Brockamp’s holding rested on several distinctive features of §6511 that are absent here. Unlike §6511’s deadline, §6330(d)(1)’s deadline is not written in \"emphatic form\" or with \"detailed\" and \"technical\" language, nor is it reiterated multiple times. Id., at 350–351. And §6330(d)(1) admits of a single exception (as opposed to §6511’s six). See §6330(d)(2). If anything, these differences underscore the reasons why equitable tolling applies to §6330(d)(1). Despite the Commissioner’s protestations, the Court is not convinced that allowing §6330(d)(1) to be equitably tolled will appreciably add to the uncertainty already present in the process. Whether Boechler is entitled to equitable tolling on the facts of this case should be determined on remand. Pp. 8–11. 967 F. 3d 760, reversed and remanded.", "opinion": "The Internal Revenue Service can seize taxpayer property to collect tax debts. Before it does so, however, the taxpayer is typically entitled to a \"collection due process hearing\"—a proceeding at which the taxpayer can challenge the levy or offer collection alternatives like payment by installment. That hearing may have a happy (or at least relatively happy) ending from the taxpayer’s perspective. But if not, the taxpayer has 30 days to petition the Tax Court for review. Boechler, P.C., the petitioner in this case, missed the deadline by one day. According to the Commissioner of the IRS, this tardiness extinguished Boechler’s opportunity to seek review of the agency’s determination. The Commissioner insists that the deadline is jurisdictional, which means that the Tax Court has no authority to consider latefiled petitions. And even if it is not jurisdictional, the Commissioner argues, the Tax Court lacks the power to accept a tardy filing by applying the doctrine of equitable tolling. We disagree with the Commissioner on both scores. I Boechler is a law firm in Fargo, North Dakota. In 2015, the IRS notified Boechler of a discrepancy in its tax filings. When Boechler did not respond, the agency assessed an \"intentional disregard\" penalty and notified Boechler of its intent to levy—in other words, to seize and sell—Boechler’s property to satisfy the penalty. See 26 U. S. C. §§6330(a), 6721(a)(2), (e)(2)(A). That got Boechler’s attention, and in an effort to prevent the levy, it requested a hearing before the agency’s Independent Office of Appeals. §6330(b). This proceeding—known as a collection due process hearing— generally provides taxpayers with administrative review before the IRS takes their property. §6330(a)(1). At its hearing, Boechler challenged the penalty, arguing both that there was no discrepancy in its tax filings and that the penalty was excessive. The Independent Office of Appeals sustained the proposed levy. Under §6330(d)(1), Boechler had 30 days to petition the Tax Court to review this collection due process determination. But Boechler dropped the ball and filed its petition a day late. The Tax Court dismissed the petition for lack of jurisdiction and the Eighth Circuit affirmed, agreeing that §6330(d)(1)’s 30-day filing deadline is jurisdictional and thus cannot be equitably tolled. 967 F. 3d 760 (2020). We granted certiorari. 594 U. S. ___ (2021). II A Jurisdictional requirements mark the bounds of a \"court’s adjudicatory authority.\" Kontrick v. Ryan, 540 U. S. 443, 455 (2004). Yet not all procedural requirements fit that bill. Many simply instruct \"parties [to] take certain procedural steps at certain specified times\" without conditioning a court’s authority to hear the case on compliance with those steps. Henderson v. Shinseki, 562 U. S. 428, 435 (2011). These nonjurisdictional rules \"promote the orderly progress of litigation\" but do not bear on a court’s power. Ibid. The distinction matters. Jurisdictional requirements cannot be waived or forfeited, must be raised by courts sua sponte, and, as relevant to this case, do not allow for equitable exceptions. Id., at 434–435; Sebelius v. Auburn Regional Medical Center, 568 U. S. 145, 154 (2013). Mindful of these consequences, we have endeavored \"to bring some discipline\" to use of the jurisdictional label. Henderson, 562 U. S., at 435. To that end, we treat a procedural requirement as jurisdictional only if Congress \"clearly states\" that it is. Arbaugh v. Y & H Corp., 546 U. S. 500, 515 (2006). Congress need not \"incant magic words,\" Auburn, 568 U. S., at 153, but the \"traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences,\" United States v. Kwai Fun Wong, 575 U. S. 402, 410 (2015). This case therefore turns on whether Congress has clearly stated that §6330(d)(1)’s deadline to petition for review of a collection due process determination is jurisdictional. Section 6330(d)(1) provides: \"The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).\" The only jurisdictional language appears in the parenthetical at the end of the sentence. All agree that the parenthetical grants the Tax Court jurisdiction over petitions for review of collection due process determinations. And all agree that the provision imposes a 30-day deadline to file those petitions. The question is whether the provision limits the Tax Court’s jurisdiction to petitions filed within that timeframe. The answer depends on the meaning of \"such matter,\" the phrase marking the bounds of the Tax Court’s jurisdiction. Boechler contends that it refers only to the immediately preceding phrase: a \"petition [to] the Tax Court for review of such determination.\" If so, the filing deadline is independent of the jurisdictional grant. The Commissioner, by contrast, argues that \"such matter\" refers to the entire first clause of the sentence, sweeping in the deadline and granting jurisdiction only over petitions filed within that time. On this reading, the deadline is jurisdictional. As we see it, the text does not clearly mandate the jurisdictional reading. It is hard to see how it could, given that \"such matter\" lacks a clear antecedent. The word \"matter\" does not appear elsewhere in §6330(d)(1), and no other \"‘noun or noun phrase’\" serves as the obvious antecedent. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 144 (2012). Both parties cope with this awkward structure by treating \"petition\" as a noun, even though it appears in the provision as a verb. Maybe the parties are right that the statute asks the single word \"petition\" to perform double duty. But relying on this grammatical sleight of hand does not exactly help the Commissioner’s argument that the text is clear. Moreover, even taking \"petition\" as a noun, Boechler’s interpretation has a small edge. The last-antecedent rule instructs that the correct antecedent is usually \"the nearest reasonable\" one. Ibid. And Boechler links \"such matter\" to the phrase immediately preceding the jurisdictional parenthetical, while the Commissioner stretches back one phrase more. This is hardly a slam dunk for Boechler, but it is one reason to prefer its reading—or at least to regard the Commissioner’s as not clearly right. It is also worth noting that the parties’ back-and-forth does not exhaust the universe of plausible ways to read \"such matter.\" For example, \"such matter\" might refer to \"such determination\" (which in turn refers to a \"determination under this section\"). Or \"such matter\" might refer to the preceding subsection’s list of \"[m]atters\" that may be considered during the collection due process hearing. 26 U. S. C. §6330(c). Neither possibility ties the Tax Court’s jurisdiction to the filing deadline, and that is another point in Boechler’s favor. Where multiple plausible interpretations exist—only one of which is jurisdictional—it is difficult to make the case that the jurisdictional reading is clear. See Sossamon v. Texas, 563 U. S. 277, 287 (2011). Nothing else in the provision’s text or structure advances the case for jurisdictional clarity. The deadline, which appears in the first independent clause of the sentence, explains what the taxpayer may do: \"The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination.\" §6330(d)(1). The jurisdictional grant, which appears in a parenthetical at the end of the sentence, speaks to what the Tax Court shall do: \"(and the Tax Court shall have jurisdiction with respect to such matter).\" Ibid. As explained above, this language can be plausibly construed to condition the Tax Court’s jurisdiction on a timely filing. But the condition would not be express and would be found in a parenthetical, which is typically used to convey an \"aside\" or \"afterthought.\" B. Garner, Modern English Usage 1020 (4th ed. 2016). Finally, the broader statutory context confirms the lack of any clear statement in §6330(d)(1). Other tax provisions enacted around the same time as §6330(d)(1) much more clearly link their jurisdictional grants to a filing deadline. See 26 U. S. C. §6404(g)(1) (1994 ed., Supp. II) (the Tax Court has \"jurisdiction over any action . . . to determine whether the Secretary’s failure to abate interest under this section was an abuse of discretion, . . . if such action is brought within 180 days\"); §6015(e)(1)(A) (1994 ed., Supp. IV) (\"The individual may petition the Tax Court (and the Tax Court shall have jurisdiction) to determine the appropriate relief available to the individual under this section if such petition is filed during the 90-day period\"). These provisions accentuate the lack of comparable clarity in §6330(d)(1). B The Commissioner’s counterarguments fall short. To begin with, the Commissioner repeats his refrain that \"such matter\" refers to the entire first clause of the sentence, thereby conditioning the Tax Court’s jurisdiction on the deadline. We agree that this is a plausible interpretation of the statute. Some might even think it better than Boechler’s. But in this context, better is not enough. To satisfy the clear-statement rule, the jurisdictional condition must be just that: clear. And as we have already explained, the Commissioner’s interpretation is not. What of the fact that the jurisdictional grant and filing deadline appear in the same provision, even the same sentence? This does not render the Commissioner’s reading clear either. A requirement \"does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions.\" Auburn, 568 U. S., at 155. Consequently, this is not the first time we have parsed a single statutory sentence to distinguish between its jurisdictional and nonjurisdictional elements. See Weinberger v. Salfi, 422 U. S. 749, 763–764 (1975). Rather than proximity, the important feature is the one that is missing here: a clear tie between the deadline and the jurisdictional grant. The Commissioner contends that a neighboring provision clarifies the jurisdictional effect of the filing deadline. Section 6330(e)(1) provides that \"if a [collection due process] hearing is requested . . . the levy actions which are the subject of the requested hearing . . . shall be suspended for the period during which such hearing, and appeals therein, are pending.\" To enforce that suspension, a \"proper court, including the Tax Court,\" may \"enjoi[n]\" a \"levy or proceeding during the time the suspension . . . is in force,\" but \"[t]he Tax Court shall have no jurisdiction under this paragraph to enjoin any action or proceeding unless a timely appeal has been filed under subsection (d)(1).\" §6330(e)(1). Section 6330(e)(1) thus plainly conditions the Tax Court’s jurisdiction to enjoin a levy on a timely filing under §6330(d)(1). According to the Commissioner, this suggests that §6330(d)(1)’s filing deadline is also jurisdictional. It would be strange, the Commissioner says, to make the deadline a jurisdictional requirement for a particular remedy (an injunction), but not for the underlying merits proceeding itself. If that were so, the Tax Court could accept late-filed petitions but would lack jurisdiction to enjoin collection in such cases. So if the IRS disobeyed §6330(e)(1)’s instruction to suspend the levy during the hearing and any appeal, the taxpayer would have to initiate a new proceeding in district court to make the IRS stop. We are unmoved—and not only because the scenario the Commissioner posits would arise from the IRS’s own recalcitrance. The possibility of dual-track jurisdiction might strengthen the Commissioner’s argument that his interpretation is superior to Boechler’s. Yet as we have already explained, the Commissioner’s interpretation must be not only better, but also clear. And the prospect that §6330(e)(1) deprives the Tax Court of authority to issue an injunction in a subset of appeals (where a petition for review is both filed late and accepted on equitable tolling grounds) does not carry the Commissioner over that line. If anything, §6330(e)(1)’s clear statement—that \"[t]he Tax Court shall have no jurisdiction . . . to enjoin any action or proceeding unless a timely appeal has been filed\"—highlights the lack of such clarity in §6330(d)(1). The Commissioner’s weakest argument is his last: He insists that §6330(d)(1)’s filing deadline is jurisdictional because at the time that deadline was enacted, lower courts had held that an analogous tax provision regarding IRS deficiency determinations is jurisdictional. (That provision says that \"[w]ithin 90 days . . . the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency.\" 26 U. S. C. §6213(a).) According to the Commissioner, Congress was aware of these lower court cases and expected §6330(d)(1)’s time limit to have the same effect. So, he says, the statutory backdrop resolves any doubt that might linger in the text. The Commissioner’s argument misses the mark. The cases he cites almost all predate this Court’s effort to \"bring some discipline\" to the use of the term \"jurisdictional.\" Henderson, 562 U. S., at 435. And while this Court has been willing to treat \" ‘a long line of [Supreme] Cour[t] decisions left undisturbed by Congress’ \" as a clear indication that a requirement is jurisdictional, Fort Bend County v. Davis, 587 U. S. ___, ___ (2019) (slip op., at 6), no such \"long line\" of authority exists here. III Of course, the nonjurisdictional nature of the filing deadline does not help Boechler unless the deadline can be equitably tolled. Equitable tolling is a traditional feature of American jurisprudence and a background principle against which Congress drafts limitations periods. Lozano, 572 U. S., at 10–11. Because we do not understand Congress to alter that backdrop lightly, nonjurisdictional limitations periods are presumptively subject to equitable tolling. Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95–96 (1990). We see nothing to rebut the presumption here. Section 6330(d)(1) does not expressly prohibit equitable tolling, and its short, 30-day time limit is directed at the taxpayer, not the court. Cf. id., at 94–96 (holding that a statutory time limit with the same characteristics is subject to equitable tolling). The deadline also appears in a section of the Tax Code that is \"‘\"unusually protective\"’\" of taxpayers and a scheme in which \"‘laymen, unassisted by trained lawyers,’\" often \"‘initiate the process.’\" Auburn, 568 U. S., at 160. This context does nothing to rebut the presumption that nonjurisdictional deadlines can be equitably tolled. To counter these points, the Commissioner invokes United States v. Brockamp, 519 U. S. 347 (1997), in which we held equitable tolling inapplicable to §6511’s deadline for taxpayers to file refund claims. Id., at 348. But Brockamp, which rested on several distinctive features of that statutory deadline, is inapposite. Congress wrote the time limit in \"unusually emphatic form,\" and its \"detailed technical\" language \"c[ould not] easily be read as containing implicit exceptions.\" Id., at 350. The statute also \"reiterate[d]\" the deadline \"several times in several different ways.\" Id., at 351. And the statute \"explicit[ly] list[ed]\" numerous (six) exceptions to the deadline. Id., at 352. The \"nature of the underlying subject matter—tax collection— underscore[d] the linguistic point.\" Ibid. That was because of the \"administrative problem\" of allowing equitable tolling when the \"IRS processe[d] more than 200 million tax returns\" and \"issue[d] more than 90 million refunds\" each year. Ibid. Section 6330(d)(1)’s deadline is a far cry from the one in Brockamp. This deadline is not written in \"emphatic form\" or with \"detailed\" and \"technical\" language, nor is it reiterated multiple times. The deadline admits of a single exception (as opposed to Brockamp’s six), which applies if a taxpayer is prohibited from filing a petition with the Tax Court because of a bankruptcy proceeding. §6330(d)(2). That makes this case less like Brockamp and more like Holland v. Florida, 560 U. S. 631 (2010), in which we applied equitable tolling to a deadline with a single statutory exception. See id., at 647–648. And it bears emphasis that Brockamp does not control simply because it also dealt with a statute relating to tax collection. In this case, any concerns about the administrability of applying equitable tolling to §6330(d)(1) pale in comparison to those at issue in Brockamp, which dealt with a central provision of tax law. The deadline here serves a far more limited and ancillary role in the tax collection system. If anything, the differences between the statute at issue in Brockamp and this one underscore the reasons why equitable tolling applies to §6330(d)(1). The Commissioner protests that if equitable tolling is available, the IRS will not know whether it can proceed with a collection action after §6330(d)(1)’s deadline passes. The Commissioner acknowledges that the deadline is already subject to tolling provisions found elsewhere in the Tax Code—for example, tolling is available to taxpayers located in a combat zone or disaster area. Tr. of Oral Arg. 37–40. But he says that the IRS can easily account for these contingencies because it continuously monitors whether any taxpayer is in a combat zone or disaster area. Ibid. Tolling the §6330(d)(1) deadline outside these circumstances, the Commissioner insists, would create much more uncertainty. Id., at 37–38. We are not convinced that the possibility of equitable tolling for the relatively small number of petitions at issue in this case will appreciably add to the uncertainty already present in the process. To take the most obvious example, petitions for review are considered filed when mailed. 26 U. S. C. §7502(a)(1). The 30-day deadline thus may come and go before a petition \"filed\" within that time comes to the IRS’s attention. Presumably, the IRS does not monitor when petitions for review are mailed. So it is not as if the IRS can confidently rush to seize property on day 31 anyway. None of this is to say that Boechler is entitled to equitable tolling on the facts of this case. That should be determined on remand. We simply hold that §6330(d)(1)’s filing deadline, like most others, can be equitably tolled in appropriate cases. Section 6330(d)(1)’s 30-day time limit to file a petition for review of a collection due process determination is an ordinary, nonjurisdictional deadline subject to equitable tolling. We reverse the contrary judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."},
{"docket_number": "20-1566", "syllabus": "The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U. S. C. §1602 et seq., governs whether a foreign state or instrumentality is amenable to suit in an American court. The question in this case is what choiceof-law rule a court should use to determine the applicable substantive law in an FSIA suit raising non-federal claims. That issue arises in a dispute concerning the ownership of an Impressionist painting: Camille Pissarro’s Rue Saint-Honoré in the Afternoon, Effect of Rain. Lilly Cassirer inherited the painting, which a family member had purchased from Pissarro’s agent in 1900. After the Nazis came to power in Germany, Lilly surrendered Rue Saint-Honoré to them to obtain an exit visa. Lilly and her grandson, Claude, eventually ended up in the United States. The family’s post-war search for Rue Saint-Honoré was unsuccessful. In the early 1990s, the painting was purchased by the Thyssen-Bornemisza Collection Foundation, an entity created and controlled by the Kingdom of Spain. Claude learned several years later that Rue Saint-Honoré was listed in a catalogue of the Foundation’s museum. Claude sued the Foundation, asserting various property-law claims based on the allegation that he owned Rue Saint-Honoré and was entitled to its return. Because the Foundation is an \"instrumentality\" of the Kingdom of Spain, the complaint invoked the FSIA to establish the court’s jurisdiction. See §1603(b). The FSIA provides foreign states and their instrumentalities with immunity from suit unless the claim falls within a specified exception. See §§1605–1607. The courts below held that the Nazi confiscation of Rue Saint-Honoré brought Claude’s suit against the Foundation within the FSIA exception for expropriated property. See §1605(a)(3). That meant the Cassirer family’s suit could go forward. To determine what property law governed the dispute, the courts below had to apply a choice-of-law rule. The Cassirer plaintiffs urged the use of California’s choice-of-law rule; the Foundation advocated a rule based in federal common law. The courts below picked the federal option. That option, they then held, commanded use of the property law of Spain, not California. Applying Spanish law, the courts determined that the Foundation was the rightful owner. This Court granted certiorari to resolve a conflict among the Courts of Appeals as to what choice-of-law rule a court should apply in an FSIA case raising non-federal claims. Held: In an FSIA suit raising non-federal claims against a foreign state or instrumentality, a court should determine the substantive law by using the same choice-of-law rule applicable in a similar suit against a private party. Here, that means applying the forum State’s choiceof-law rule, not a rule deriving from federal common law. The FSIA provides a baseline principle of foreign sovereign immunity from civil actions unless a statutory exception applies (including the expropriation exception found to apply here). See §§1604–1607. Yet the FSIA was never \"intended to affect the substantive law determining the liability of a foreign state or instrumentality\" deemed amenable to suit. First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611, 620. To the contrary, Section 1606 of the statute provides: \"As to any claim for relief with respect to which a foreign state is not entitled to immunity under [the FSIA], the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.\" When a foreign state is not immune from suit, it is subject to the same rules of liability (the same substantive law) as a private party. See First Nat. City Bank, at 622, n. 11. Section 1606 dictates the selection of a choice-of-law rule: It must mirror the rule that would apply in a similar suit between private parties. Only the same choice-of-law rule can guarantee use of the same substantive law—and thus guarantee the same liability. Consider two suits seeking recovery of a painting: one suit against a foreign-statecontrolled museum (as here), the other against a private museum. If the choice-of-law rules in the two suits differed, so might the substantive law chosen. And if the substantive law differed, so might the suits’ outcomes. Contrary to Section 1606, the two museums would not be \"liable to the same manner and to the same extent.\" In this case, Section 1606 requires the use of California’s choice-oflaw rule—because that is the rule a court would use in comparable private litigation. Consider the just-hypothesized suit against a private museum, brought as this case was in California and asserting non-federal claims. If the private suit were filed in state court, California’s choice-of-law rule would govern. And if the private suit were filed in federal court, the same would be true, because a federal court sitting in diversity borrows the forum State’s choice-of-law rule. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487, 496. If California’s choice-of-law rule applies in the private-museum suit, it must also apply in the suit here, against the Foundation. That is the only way to ensure—as Section 1606 demands—that the Foundation, although a Spanish instrumentality, will be liable in the same way as a private party. Even absent the clarity of Section 1606, the Court would likely reach the same result. Scant justification exists for federal common lawmaking in this context. Judicial creation of federal common law to displace state-created rules must be \"necessary to protect uniquely federal interests.\" Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640. While foreign relations is an interest of that kind, here even the Federal Government disclaims any necessity for a federal choice-of-law rule in FSIA suits raising non-federal claims. Pp. 5–9. 824 Fed. Appx. 452, vacated and remanded.", "opinion": "Under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U. S. C. §1602 et seq., a foreign state or instrumentality is amenable in specified circumstances to suit in an American court. In this case, the plaintiffs brought such a suit to recover expropriated property. The question presented is what choice-of-law rule the court should use to determine the applicable substantive law. The answer is: whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party. Here, that means applying the forum State’s choiceof-law rule, not a rule deriving from federal common law. I Although the legal issue before us is prosaic, the case’s subject matter and background are anything but. At issue is the ownership of an Impressionist painting depicting a Paris streetscape: Camille Pissarro’s Rue Saint-Honoré in the Afternoon, Effect of Rain (shown in this opinion’s appendix). Pissarro’s agent sold the painting in 1900 to Paul Cassirer, a member of a prominent German Jewish family owning an art gallery and publishing house. Some quarter century later, Lilly Cassirer inherited the painting and displayed it in her Berlin home (as also pictured in the appendix). But in 1933, the Nazis came to power. After years of intensifying persecution of German Jews, Lilly decided in 1939 that she had to do anything necessary to escape the country. To obtain an exit visa to England, where her grandson Claude Cassirer had already relocated, she surrendered the painting to the Nazis. The underlying question in this case—which this opinion will not resolve—is whether the Cassirer family can get the painting back. The post-war search for Rue Saint-Honoré was a long one. Lilly and Claude, who both eventually ended up in the United States, had no success tracking down the painting. After being legally declared the rightful owner, Lilly agreed in 1958 to accept compensation from the German Federal Republic—about $250,000 in today’s dollars. (The painting is now thought to be worth tens of millions.) In fact, Rue Saint-Honoré was nearby: Like the Cassirers, the painting had also arrived in the United States after the war, and sat in a private collection in St. Louis from 1952 to 1976. In that year, the Baron Hans Heinrich Thyssen-Bornemisza (descended from the founder of a German steel empire) purchased the painting and brought it back to Europe. Rue Saint-Honoré hung at his residence in Switzerland until the early 1990s. At that time, the Baron sold much of his art collection, including Rue Saint-Honoré, to an entity the Kingdom of Spain created and controlled, called the Thyssen-Bornemisza Collection Foundation. In addition to financing the $300 million-plus purchase, the Spanish Government provided the Foundation with a palace in Madrid to serve as a museum for the collection. The museum, as museums do, published a catalogue of its holdings. An acquaintance of Claude’s saw the catalogue and made the connection, telling him in 1999 where Rue Saint-Honoré was now located. (Lilly had by then long since died, with Claude as her sole heir.) After informal efforts to recover the painting failed, Claude sued the Foundation in federal court in the Central District of California, near where he then lived. His complaint asserted various property-law claims, all alleging that he owned Rue Saint-Honoré and was entitled to its return. And because the Foundation is an \"instrumentality\" of the Kingdom of Spain, the complaint invoked the FSIA to establish the court’s jurisdiction. See §1603(b) (describing an instrumentality as a legally separate but statecontrolled entity). The FSIA governs whether a foreign state or instrumentality is amenable to suit in an American court. It provides the sovereign actor with immunity unless the claim against it falls within a specified exception. See §§1605–1607. The complaint here asserted that the statute’s expropriation exception applied. That exception removes immunity for cases involving \"rights in property taken in violation of international law.\" §1605(a)(3). At a prior stage of this litigation, the courts below held that the Nazi confiscation of Rue Saint-Honoré brought Claude’s suit against the Foundation within the expropriation exception. See 461 F. Supp. 2d 1157, 1176–1177 (CD Cal. 2006), aff ’d, 616 F. 3d 1019, 1037 (CA9 2010) (en banc), cert. denied, 564 U. S. 1037 (2011). That determination, which is no longer at issue, meant that the suit could go forward. (Claude, though, would not live to see anything further; he passed away in 2010, and his heirs became the plaintiffs.)1 But go forward pursuant to what law? The courts had to decide whose property law (Spain’s? California’s?) should govern the suit, and thus determine the painting’s rightful owner. Resolving that question required application of a choice-of-law rule—a means of selecting which jurisdiction’s law governs the determination of liability. Yet there another issue lurked. For the parties contested which choice-of-law rule should apply—serving up, so to speak, a choice of choice-of-law principles. The Cassirer plaintiffs urged the use of California’s choice-of-law rule; the defendant Foundation advocated a rule based in federal common law. The courts below, relying on a minimally reasoned Ninth Circuit precedent, picked the federal option. See 153 F. Supp. 3d 1148, 1154 (CD Cal. 2015), aff ’d, 862 F. 3d 951, 961 (CA9 2017), cert. denied, 584 U. S. ___ (2018). That federal choice-of-law rule, they further held, commanded the use of Spanish (not Californian) property law to resolve the ownership issue. See 153 F. Supp. 3d, at 1155, aff ’d, 862 F. 3d, at 963. Finally, the courts below determined after a trial that under Spanish law the Foundation was the rightful owner, because it purchased Rue Saint-Honoré without knowing the painting was stolen and had held it long enough to gain title through possession. See No. 05– cv–03459 (CD Cal., Apr. 30, 2019), ECF Doc. 621, pp. 26– 30, aff ’d, 824 Fed. Appx. 452, 454–455 (CA9 2020). The Cassirers sought our review, limited to a single issue: whether a court in an FSIA case raising non-federal claims (relating to property, torts, contracts, and so forth) should apply the forum State’s choice-of-law rule, or instead use a federal one. We granted certiorari, 594 U. S. ___ (2021), because that question has generated a split in the Courts of Appeals. The Ninth Circuit stands alone in using a federal choice-of-law rule to pick the applicable substantive law. All other Courts of Appeals to have addressed the issue apply the choice-of-law rule of the forum State.2 We agree with that more common approach, and now vacate the judgment below. II The FSIA, as indicated above, creates a uniform body of federal law to govern the amenability of foreign states and their instrumentalities to suit in the United States. See supra, at 3. The statute first lays down a baseline principle of foreign sovereign immunity from civil actions. See §1604. It then lists a series of exceptions from that principle (including the expropriation exception found to apply here). See §§1605–1607; supra, at 3. The result is to spell out, as a matter of federal law, the suits against foreign sovereigns that American courts do, and do not, have power to decide. Yet the FSIA was never \"intended to affect the substantive law determining the liability of a foreign state or instrumentality\" deemed amenable to suit. First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611, 620 (1983). To the contrary, Section 1606 of the statute provides: \"As to any claim for relief with respect to which a foreign state is not entitled to immunity under [the FSIA], the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.\" So when a foreign state is not immune from suit, it is subject to the same rules of liability as a private party. Which is just to say that the substantive law applying to the latter also applies to the former. See First Nat. City Bank, 462 U. S., at 622, n. 11. As one court put the point, Section 1606 directs a \"pass-through\" to the substantive law that would govern a similar suit between private individuals. Oveissi v. Islamic Republic of Iran, 573 F. 3d 835, 841 (CADC 2009). The provision thus ensures that a foreign state, if found ineligible for immunity, must answer for its conduct just as any other actor would. And in so doing, Section 1606 also dictates the selection of a choice-of-law rule: It, too, must mirror the rule that would apply in a similar suit between private parties. For only the same choice-of-law rule can guarantee use of the same substantive law—and thus (see above) guarantee the same liability. See Barkanic v. General Admin. of Civ. Aviation of People’s Republic of China, 923 F. 2d 957, 959–960 (CA2 1991) (\"[T]he same choice of law analysis\" is needed to \"apply[] identical substantive laws,\" and so to \"ensure identity of liability\" between a foreign state and a private individual). Consider two suits seeking recovery of a painting—one suit against a foreign-state-controlled museum (as here), the other against a private museum. If the choice-oflaw rules in the two suits differed, so might the substantive law in fact chosen. And if the substantive law differed, so might the suits’ outcomes. In one case, say, the plaintiff would recover the art, and in the other not. Contrary to Section 1606, the two museums would not be \"liable in the same manner and to the same extent.\" In this case, then, Section 1606 requires the use of California’s choice-of-law rule—because that is the rule a court would use in comparable private litigation. Consider the just-hypothesized suit against a private museum for return of a piece of art, brought as this case was in California. The claims asserted (again, as in this case) turn only on state or foreign property law, with no substantive federal component. If the private suit were filed in state court, California’s choice-of-law rule would of course govern. And if the private suit were filed in federal court, under diversity-ofcitizenship jurisdiction, the same would be true. According to long-settled precedent, a federal court sitting in diversity borrows the forum State’s choice-of-law rule. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487, 496 (1941). So the private-museum suit would begin with the application of California’s choice-of-law rule, to decide on the governing substantive law. And if that choice-of-law rule applies in the private-museum suit, so too it must apply in the suit here, against the Foundation. That is the only way to ensure—as Section 1606 demands—that the Foundation, although a Spanish instrumentality, will be liable in the same way as a private party. In choosing instead to apply a federal choice-of-law rule, the courts below could well have created a mismatch between the Foundation’s liability and a private defendant’s. As described earlier, those courts found that the federal rule commanded the use of Spanish property law to determine Rue Saint-Honoré ’s rightful owner. See supra, at 4. Spanish law (as the courts below understood it) made everything depend on whether, at the time of acquisition, the Foundation knew the painting was stolen: If the Foundation did not know—as the courts in fact found—then it owned the painting by virtue of possession. See ECF Doc. No. 621, at 26–30, aff ’d, 824 Fed. Appx., at 454–455. But now consider the possible result if the courts below had instead applied California’s choice-of-law rule, as they would have done in a private suit. The Cassirer plaintiffs contend that the California rule would lead to the application of California property law. See Brief for Petitioners 13. And they argue that under California property law, even a good-faith purchaser of stolen property cannot prevail against the rightful pre-theft owner. See ibid. We do not today decide those questions; they remain in the hands of the lower courts. But if the Cassirers are right, the use of a federal choice-of-law rule in the courts below stopped Section 1606 from working: That rule led to the Foundation keeping the painting when a private museum would have had to give it back. And even were Section 1606 not so clear, we would likely reach the same result, because we see scant justification for federal common lawmaking in this context. Judicial creation of federal common law to displace state-created rules must be \"necessary to protect uniquely federal interests.\" Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640 (1981). Foreign relations is of course an interest of that kind. But even the Federal Government, participating here in support of the Cassirers’ position, disclaims any necessity for a federal choice-of-law rule in FSIA suits raising non-federal claims. See Brief for United States as Amicus Curiae 9, 20–23. As the Government notes, such FSIA suits arise only when a foreign state has lost its broad immunity and become subject to standard-fare legal claims involving property, contract, or the like. See id., at 9. No one would think federal law displaces the substantive rule of decision in those suits; and we see no greater warrant for federal law to supplant the otherwise applicable choice-oflaw rule. See id., at 21 (State choice-of-law rules do not \"ordinarily pose a greater threat to foreign relations than\" state-law principles determining \"the rights and liabilities of the parties\"). Courts outside the Ninth Circuit have long applied state choice-of-law rules in FSIA suits. See supra, at 4, and n. 2. Yet the Government says it knows of no case in which that practice has created foreign relations concerns. See Tr. of Oral Arg. 20–21.3 So the Ninth Circuit’s use of a federal choice-of-law rule in FSIA cases has been a solution in search of a problem, rejecting without any reason the usual role of state law. The path of our decision has been as short as the hunt for Rue Saint-Honoré was long; our ruling is as simple as the conflict over its rightful owner has been vexed. A foreign state or instrumentality in an FSIA suit is liable just as a private party would be. See §1606. That means the standard choice-of-law rule must apply. In a property-law dispute like this one, that standard rule is the forum State’s (here, California’s)—not any deriving from federal common law. Accordingly, 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."},
{"docket_number": "20-804", "syllabus": "In 2013, David Wilson was elected to the Board of Trustees of the Houston Community College System (HCC), a public entity that operates various community colleges. Mr. Wilson often disagreed with the Board about the best interests of HCC, and he brought multiple lawsuits challenging the Board’s actions. By 2016, these escalating disagreements led the Board to reprimand Mr. Wilson publicly. Mr. Wilson continued to charge the Board—in media outlets as well as in statecourt actions—with violating its ethical rules and bylaws. At a 2018 meeting, the Board adopted another public resolution, this one \"censuring\" Mr. Wilson and stating that Mr. Wilson’s conduct was \"not consistent with the best interests of the College\" and \"not only inappropriate, but reprehensible.\" App. to Pet. for Cert. 44a. The Board imposed penalties in addition to the verbal censure, among them deeming Mr. Wilson ineligible for Board officer positions during 2018. Mr. Wilson amended the pleadings in one of his pending state-court lawsuits to add claims against HCC and the trustees under 42 U. S. C. § 1983, asserting that the Board’s censure violated the First Amendment. The case was removed to federal court, and the District Court granted HCC’s motion to dismiss the complaint, concluding that Mr. Wilson lacked standing under Article III. On appeal, a panel of the Fifth Circuit reversed, holding that Mr. Wilson had standing and that his complaint stated a viable First Amendment claim. 955 F. 3d 490, 496–497. The Fifth Circuit concluded that a verbal \"reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under § 1983.\" Id., at 498. HCC sought review in this Court of the Fifth Circuit’s judgment that Mr. Wilson may pursue a First Amendment claim based on a purely verbal censure. Held: Mr. Wilson does not possess an actionable First Amendment claim arising from the Board’s purely verbal censure. Pp. 4–13. (a) The First Amendment prohibits laws \"abridging the freedom of speech.\" When faced with a dispute about the Constitution’s meaning or application, \"[l]ong settled and established practice is a consideration of great weight.\" The Pocket Veto Case, 279 U. S. 655, 689. That principle poses a problem for Mr. Wilson because elected bodies in this country have long exercised the power to censure their members. As early as colonial times, the power of assemblies to censure their members was assumed. And, as many examples show, Congress has censured Members not only for objectionable speech directed at fellow Members but also for comments to the media, public remarks disclosing confidential information, and conduct or speech thought damaging to the Nation. Censures have also proven common at the state and local level. In fact, no one before the Court has cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson’s has ever been widely considered offensive to the First Amendment. Instead, when it comes to disagreements of this sort, longstanding practice suggests an understanding of the First Amendment that permits \"[f]ree speech on both sides and for every faction on any side.\" Thomas v. Collins, 323 U. S. 516, 547 (Jackson, J., concurring). Pp. 4–7. (b) What history suggests, the Court’s contemporary doctrine confirms. A plaintiff like Mr. Wilson pursuing a First Amendment retaliation claim must show that the government took an \"adverse action\" in response to his speech that \"would not have been taken absent the retaliatory motive.\" Nieves v. Bartlett, 587 U. S. ___, ___. To distinguish material from immaterial adverse actions, lower courts have taken various approaches. But any fair assessment of the materiality of the Board’s conduct in this case must account for at least two things. First, Mr. Wilson was an elected official. Elected representatives are expected to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes. Second, the only adverse action at issue before the Court is itself a form of speech from Mr. Wilson’s colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy, but it cannot be used as a weapon to silence other representatives seeking to do the same. The censure at issue before us was a form of speech by elected representatives concerning the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. The censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory. Given the features of Mr. Wilson’s case, the Board’s censure does not qualify as a materially adverse action capable of deterring Mr. Wilson from exercising his own right to speak. Pp. 7–11. (c) Mr. Wilson’s countervailing account of the Court’s precedent and history rests on a strained analogy between censure and exclusion from office. While Congress possesses no power to exclude duly elected representatives who satisfy the prerequisites for office prescribed in Article I of the Constitution, the power to exclude and the power to issue other, lesser forms of discipline \"are not fungible\" under the Constitution. Powell v. McCormack, 395 U. S. 486, 512. The differences between censure and exclusion from office undermine Mr. Wilson’s attempt to rely on either Bond v. Floyd, 385 U. S 116, or the historical example he cites involving John Wilkes, both of which involved exclusion from office. Neither history nor this Court’s precedents support finding a viable First Amendment claim here. Pp. 11–13. 955 F. 3d 490, reversed.", "opinion": "After years of acrimony, the Board of Trustees of the Houston Community College System censured one of its members, David Wilson. Mr. Wilson responded by filing a lawsuit challenging the Board’s action. That suit now presents us with this question: Did the Board’s censure offend Mr. Wilson’s First Amendment right to free speech? I A The Houston Community College System (HCC) is a public entity that operates various community colleges in Texas. Its Board of Trustees consists of nine members, each of whom is elected from a single-member district for a 6- year term. Mr. Wilson was elected to the Board in 2013. From the start, his tenure was a stormy one. Often and strongly, he disagreed with many of his colleagues about the direction of HCC and its best interests. Soon, too, he brought various lawsuits challenging the Board’s actions. By 2016, these escalating disagreements led the Board to reprimand Mr. Wilson publicly. According to news reports, Mr. Wilson responded by promising that the Board’s action would \"‘never . . . stop me.’\" Brief for Petitioner 3, and nn. 3, 4. Nor did it. In the ensuing months, Mr. Wilson charged the Board in various media outlets with violating its bylaws and ethical rules. He arranged robocalls to the constituents of certain trustees to publicize his views. He hired a private investigator to surveil another trustee, apparently seeking to prove she did not reside in the district that had elected her. He also filed two new lawsuits in state court. In the first, Mr. Wilson alleged that the Board had violated its bylaws by allowing a trustee to vote via videoconference. When his colleagues excluded him from a meeting to discuss the lawsuit, Mr. Wilson filed a second suit contending that the Board and HCC had \" ‘prohibited him from performing his core functions as a Trustee.’\" Brief in Opposition 8 (quoting Plaintiff ’s Original Pet. in No. 17–71693 (Tex. Dist. Ct., Oct. 24, 2017)). All told, these two lawsuits cost HCC over $20,000 in legal fees. That was on top of more than $250,000 in legal fees HCC incurred due to Mr. Wilson’s earlier litigation. At a 2018 meeting, the Board responded by adopting another public resolution, this one \"censuring\" Mr. Wilson. The resolution stated that Mr. Wilson’s conduct was \"not consistent with the best interests of the College\" and \"not only inappropriate, but reprehensible.\" App. to Pet. for Cert. 44a. The Board also imposed certain penalties. It provided that Mr. Wilson was \"ineligible for election to Board officer positions for the 2018 calendar year,\" that he was \"ineligible for reimbursement for any College-related travel,\" and that his future requests to \"access . . . funds in his Board account for community affairs\" would require Board approval. Ibid. The Board further recommended that Mr. Wilson \"complete additional training relating to governance and ethics.\" Id., at 44a–45a. B Shortly after the Board adopted its second resolution, Mr. Wilson amended the pleadings in one of his pending statecourt lawsuits, adding claims against HCC and the trustees under 42 U. S. C. § 1983. Among other things, Mr. Wilson asserted that the Board’s censure violated the First Amendment. By way of remedy, he sought injunctive and declaratory relief as well as damages for mental anguish, punitive damages, and attorney’s fees. Years of legal twists and turns followed. HCC and the trustees removed the case to federal court. Mr. Wilson then amended his complaint to drop his colleagues from the suit, leaving HCC as the sole defendant. Eventually, HCC moved to dismiss the complaint. The District Court granted the motion, concluding that Mr. Wilson lacked standing under Article III. On appeal, a panel of the Fifth Circuit reversed, holding that Mr. Wilson had standing and that his complaint stated a viable First Amendment claim. 955 F. 3d 490, 496–497 (2020). The Fifth Circuit’s merits analysis proceeded in two steps. First, the court concluded that a verbal \"reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under § 1983.\" Id., at 498. Next, the court reasoned that the Board’s imposition of other punishments—such as limiting Mr. Wilson’s eligibility for officer positions and his access to certain funds—did \"not violate his First Amendment rights\" because Mr. Wilson did not have an \"entitlement\" to those privileges. Id., at 499, n. 55. In sum, the court held that Mr. Wilson’s § 1983 action could proceed, but only as to the Board’s unadorned censure resolution. HCC’s request for rehearing en banc failed by an equally divided vote. 966 F. 3d 341 (CA5 2020). In time, HCC filed a petition for certiorari in this Court. It asked us to review the Fifth Circuit’s judgment that Mr. Wilson may pursue a First Amendment claim based on a purely verbal censure. Last year, we agreed to take up that question. 593 U. S. ___ (2021). But as merits briefing unfolded, Mr. Wilson did not just seek to defend the Fifth Circuit’s judgment; he also sought to challenge it in part. Specifically, he argued that the Fifth Circuit erred to the extent that it upheld the Board’s nonverbal punishments as consistent with the First Amendment. Generally, however, when a respondent in this Court seeks to alter a lower court’s judgment, he must file and we must grant a crosspetition for review. See Genesis HealthCare Corp. v. Symczyk, 569 U. S. 66, 72 (2013). Mr. Wilson filed no such petition in this case. As a result, we decline to take up his challenge to the Fifth Circuit’s judgment, and the only question before us remains the narrow one on which we granted certiorari: Does Mr. Wilson possess an actionable First Amendment claim arising from the Board’s purely verbal censure? II A The First Amendment prohibits laws \"abridging the freedom of speech.\" One obvious implication of that rule is that the government usually may not impose prior restraints on speech. See Near v. Minnesota ex rel. Olson, 283 U. S. 697, 718–720 (1931). But other implications follow too. Relevant here, no one before us questions that, \"[a]s a general matter,\" the First Amendment prohibits government officials from subjecting individuals to \"retaliatory actions\" after the fact for having engaged in protected speech. Nieves v. Bartlett, 587 U. S. ___, ___ (2019) (slip op., at 5) (internal quotation marks omitted); see also Hartman v. Moore, 547 U. S. 250, 256 (2006). Mr. Wilson argues that the Board’s censure resolution represents exactly that kind of impermissible retaliatory action. Almost immediately, however, this submission confronts a challenge. When faced with a dispute about the Constitution’s meaning or application, \"[l]ong settled and established practice is a consideration of great weight.\" The Pocket Veto Case, 279 U. S. 655, 689 (1929). Often, \"a regular course of practice\" can illuminate or \"liquidate\" our founding document’s \"terms & phrases.\" Letter from J. Madison to S. Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see also McCulloch v. Maryland, 4 Wheat. 316, 401 (1819); The Federalist No. 37, p. 229 (C. Rossiter ed. 1961) (J. Madison). That principle poses a problem for Mr. Wilson because elected bodies in this country have long exercised the power to censure their members. In fact, no one before us has cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson’s has ever been widely considered offensive to the First Amendment. As early as colonial times, the power of assemblies in this country to censure their members was \"more or less assumed.\" M. Clarke, Parliamentary Privilege in the American Colonies 184 (1943). It seems, too, that assemblies often exercised the power to censure members for views they expressed and actions they took \"both within and without the legislature.\" D. Bowman & J. Bowman, Article I, Section 5: Congress’ Power to Expel—An Exercise in Self-Restraint, 29 Syracuse L. Rev. 1071, 1084–1085 (1978) (footnote omitted). The parties supply little reason to think the First Amendment was designed or commonly understood to upend this practice. To the contrary, the United States Senate issued its first censure in 1811, after a Member read aloud a letter from former President Jefferson that the body had placed under an \"injunction of secrecy.\" 22 Annals of Cong. 65–83. The House of Representatives followed suit in 1832, censuring one of its own for \"insulting . . . the Speaker.\" 2 A. Hinds, Precedents of the House of Representatives § 1248, pp. 799–800 (1907) (Hinds). Ten years later, the House reprimanded another Member after he introduced a resolution thought to be damaging to international relations. Id., § 1256, at 807–808. Many later examples followed these early ones. In 1844, the Senate issued a censure after a Member divulged to the New York Evening Post a confidential message from President Tyler \"outlin[ing] the terms of an annexation agreement with Texas.\" U. S. Senate Historical Office, A. Butler & W. Wolff, United States Senate: Election, Expulsion, and Censure Cases 1793–1990, p. 47 (1995). During the Civil War, Congress censured several Members for expressing support for the Confederacy. See Hinds § 1253, at 803–804 (censure of Rep. Alexander Long); id., § 1254, at 804–805 (censure of Rep. Benjamin G. Harris). In 1954, the Senate \"condemned\" Senator Joseph McCarthy for bringing \"the Senate into dishonor,\" citing his conduct and speech both within that body and before the press. 100 Cong. Rec. 16392; see also Butler, United States Senate, at 404–407. The House and Senate continue to exercise the censure power today. See, e.g., Congressional Research Service, J. Maskell, Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives 20 (2016) (documenting censures in the House through 2016). And, as these examples lay bare, Congress has censured Members not only for objectionable speech directed at fellow Members but also for comments to the media, public remarks disclosing confidential information, and conduct or speech thought damaging to the Nation. If anything, censures along these lines have proven more common yet at the state and local level. As early as 1833, Justice Story observed that even \"[t]he humblest assembly\" in this country historically enjoyed the power to prescribe rules for its own proceedings. 2 Commentaries on the Constitution of the United States § 835, p. 298. And throughout our history many state and local bodies have employed that authority to prescribe censure processes for their members. See Brief for Petitioner 23–28 (collecting examples). Today, the model manual of the National Conference of State Legislatures contemplates just such procedures too. See Mason’s Manual of Legislative Procedure § 561.1 (2020). According to HCC and undisputed by Mr. Wilson, it seems elected bodies in this country issued no fewer than 20 censures in August 2020 alone. See Pet. for Cert. 19–21. If this longstanding practice does not \"put at rest\" the question of the Constitution’s meaning for the dispute before us, it surely leaves a \"considerable impression.\" McCulloch, 4 Wheat., at 401. On Mr. Wilson’s telling and under the Fifth Circuit’s holding, a purely verbal censure by an elected assembly of one of its own members may offend the First Amendment. Yet we have before us no evidence suggesting prior generations thought an elected representative’s speech might be \"abridg[ed]\" by that kind of countervailing speech from his colleagues. U. S. Const., Amdt. 1. Instead, when it comes to disagreements of this sort, history suggests a different understanding of the First Amendment—one permitting \"[f]ree speech on both sides and for every faction on any side.\" Thomas v. Collins, 323 U. S. 516, 547 (1945) (Jackson, J., concurring). B What history suggests, we believe our contemporary doctrine confirms. Under this Court’s precedents, a plaintiff pursuing a First Amendment retaliation claim must show, among other things, that the government took an \"adverse action\" in response to his speech that \"would not have been taken absent the retaliatory motive.\" Nieves, 587 U. S., at ___ (slip op., at 5). Some adverse actions may be easy to identify—an arrest, a prosecution, or a dismissal from governmental employment. See id., at ___–___ (slip op., at 4– 5) (arrest); Hartman, 547 U. S., at 256 (prosecution); Perry v. Sindermann, 408 U. S. 593, 596–597 (1972) (employment). \"[D]eprivations less harsh than dismissal\" can sometimes qualify too. Rutan v. Republican Party of Ill., 497 U. S. 62, 75 (1990). At the same time, no one would think that a mere frown from a supervisor constitutes a sufficiently adverse action to give rise to an actionable First Amendment claim. To distinguish material from immaterial adverse actions, lower courts have taken various approaches. Some have asked whether the government’s challenged conduct would \"chill a person of ordinary firmness\" in the plaintiff ’s position from engaging in \"future First Amendment activity.\" Nieves, 587 U. S., at ___ (slip op., at 4) (internal quotation marks omitted). Others have inquired whether a retaliatory action \"adversely affected the plaintiff ’s . . . protected speech,\" taking into account things like the relationship between speaker and retaliator and the nature of the government action in question. Suarez Corp. Industries v. McGraw, 202 F. 3d 676, 686 (CA4 2000). But whether viewed through these lenses or any other, it seems to us that any fair assessment of the materiality of the Board’s conduct in this case must account for at least two things. First, Mr. Wilson was an elected official. In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes. As this Court has put it, \"[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement\" that it was adopted in part to \"protect the free discussion of governmental affairs.\" Mills v. Alabama, 384 U. S. 214, 218 (1966). When individuals \"consent to be a candidate for a public office conferred by the election of the people,\" they necessarily \"pu[t] [their] character in issue, so far as it may respect [their] fitness and qualifications for the office.\" White v. Nicholls, 3 How. 266, 290 (1845). Second, the only adverse action at issue before us is itself a form of speech from Mr. Wilson’s colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same. The right to \"examin[e] public characters and measures\" through \"free communication\" may be no less than the \"guardian of every other right.\" Madison’s Report on the Virginia Resolutions (Jan. 7, 1800), in 17 Papers of James Madison 345 (D. Mattern, J. Stagg, J. Cross, & S. Perdue eds. 1991). And the role that elected officials play in that process \"‘makes it all the more imperative that they be allowed to freely express themselves.’\" Republican Party of Minn. v. White, 536 U. S. 765, 781 (2002). Given these features of Mr. Wilson’s case, we do not see how the Board’s censure could qualify as a materially adverse action consistent with our case law. The censure at issue before us was a form of speech by elected representatives. It concerned the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. As it comes to us, too, the censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory. At least in these circumstances, we do not see how the Board’s censure could have materially deterred an elected official like Mr. Wilson from exercising his own right to speak. Mr. Wilson’s behavior and concessions seem telling. Recall that, after the Board’s first reprimand, Mr. Wilson did not exactly cower silently. Indeed, before us Mr. Wilson does not argue that the Board’s initial resolution interfered with his free speech rights in any way. Instead, he confines his attack to the Board’s second reprimand. And even when it comes to that resolution, he does not quibble with its contents. Mr. Wilson does not suggest, for example, that the Board’s criticism of him for \"inappropriate\" and \"reprehensible\" behavior materially deterred him from speaking his mind. Instead, he submits that the Board’s second resolution offended the First Amendment only because it was denominated a disciplinary \"censure.\" So on Mr. Wilson’s telling, it seems everything hinges on a subtlety: A reprimand no matter how strongly worded does not materially impair the freedom of speech, but a disciplinary censure does. That much we find hard to see. Doubtless, by invoking its \"censure\" authority in the second resolution the Board added a measure of sting. But we cannot see how that alone changed the equation and materially inhibited Mr. Wilson’s ability to speak freely. In rejecting Mr. Wilson’s claim, we do not mean to suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim. It may be, for example, that government officials who reprimand or censure students, employees, or licensees may in some circumstances materially impair First Amendment freedoms. See generally Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U. S. 136, 139 (1994) (licensing); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 655–656 (1985) (same); Holloman v. Harland, 370 F. 3d 1252, 1268–1269 (CA11 2004) (student); Kirby v. Elizabeth City, 388 F. 3d 440, 449 (CA4 2004) (employee). Likewise, we do not address today questions concerning legislative censures accompanied by punishments, or those aimed at private individuals. Cf. Kilbourn v. Thompson, 103 U. S. 168, 189–190 (1881) (distinguishing Congress’s power to inflict certain punishments on its own Members from its power to punish nonmembers). Nor do we pass on the First Amendment implications of censures or reprimands issued by government bodies against government officials who do not serve as members of those bodies. See, e.g., Jenevein v. Willing, 493 F. 3d 551, 560–561 (CA5 2007); Scott v. Flowers, 910 F. 2d 201, 211–213 (CA5 1990). History could hold different lessons for cases like these, too. For example, following the Whiskey Rebellion, Federalists supported by President Washington introduced a proposal in Congress to denounce \"self-created societies\" they believed had \"‘misrepresent[ed] the conduct of the Government.’\" 4 Annals of Cong. 899 (1794). James Madison and others opposed, and ultimately defeated, the effort in the House of Representatives. In doing so Madison insisted that, in a Republic like ours, \"the censorial power is in the people over the Government, and not in the Government over the people.\" Id., at 934; see also R. Chesney, Democratic-Republican Societies, Subversion, and the Limits of Legitimate Political Dissent in the Early Republic, 82 N. C. L. Rev. 1525, 1560–1566 (2004). When the government interacts with private individuals as sovereign, employer, educator, or licensor, its threat of a censure could raise First Amendment questions. But those cases are not this one. C Mr. Wilson offers a countervailing account of our precedent and history, but all of it rests on a strained analogy. To start, he directs us to Bond v. Floyd, 385 U. S. 116 (1966). There, a state legislature refused to seat a duly elected representative. According to the legislature, the representative’s comments criticizing the Vietnam War were incompatible with the State’s required loyalty oath. This Court held that the legislature’s action violated the First Amendment. Id., at 135. And, Mr. Wilson reasons, we must reach the same result here. But that much does not follow quite as seamlessly as Mr. Wilson suggests. The legislature’s action in Bond implicated not only the speech of an elected official, it also implicated the franchise of his constituents. And it involved not just counterspeech from colleagues but exclusion from office. See id., at 123–125. Just three years after Bond, the Court stressed the salience of these differences. In Powell v. McCormack, the Court held that Congress possesses no power to exclude duly elected representatives who satisfy the prerequisites for office prescribed in Article I of the Constitution. 395 U. S. 486, 550 (1969). In doing so, however, the Court took pains to emphasize that the power to exclude and the power to issue other, lesser forms of discipline \"are not fungible\" under our Constitution. Id., at 512; see also id., at 551–553 (Douglas, J., concurring). Mr. Wilson’s attempt to analogize his case to Bond thus conflates a distinction Powell cautioned us not to confuse. The differences between exclusion and censure also undermine Mr. Wilson’s alternative argument—this one concerning John Wilkes. In 1763, Wilkes \"published an attack on a recent [English] peace treaty with France, calling it the product of bribery and condemning the Crown’s ministers as the tools of despotism and corruption.\" Powell, 395 U. S., at 527 (internal quotation marks omitted). Parliament responded by expelling Wilkes from office and later refusing to seat him despite his repeated reelection. Id., at 527–528. Only in 1782 did Parliament finally relent, voting to expunge its prior resolutions and resolving that its actions had been \"subversive of the rights of the whole body of electors of this kingdom.\" Id., at 528 (internal quotation marks omitted). According to Mr. Wilson, the Wilkes affair demonstrates that legislative censures are at odds with the American legal tradition. But, once more, this argument stretches a historical analogy too far. The framers may well have had the Wilkes episode in mind when they crafted Clauses in the Constitution limiting Congress’s ability to impose its own ad hoc qualifications for office or to expel Members. See U. S. Const., Art. I, §§ 2–3, 5; see also Powell, 395 U. S., at 531–539. Undoubtedly, too, the first set of these constitutional limitations ultimately led the Court in Powell to hold that the House of Representatives may not \"exclude members-elect for general misconduct not within [the Constitution’s] standing qualifications.\" Id., at 528. But Mr. Wilson cites nothing in the Wilkes affair to support his much more ambitious suggestion that the founding generation understood the First Amendment to prohibit representative bodies from censuring members as the Board did here. If anything, as we have seen, history counsels a very different conclusion. Our case is a narrow one. It involves a censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment. It entails only a First Amendment retaliation claim, not any other claim or any other source of law. The Board’s censure spoke to the conduct of official business, and it was issued by individuals seeking to discharge their public duties. Even the censured member concedes the content of the censure would not have offended the First Amendment if it had been packaged differently. Neither the history placed before us nor this Court’s precedents support finding a viable First Amendment claim on these facts. Argument and \"counterargument,\" not litigation, are the \"weapons available\" for resolving this dispute. Wood v. Georgia, 370 U. S. 375, 389 (1962). The judgment of the Fifth Circuit is reversed."},
{"docket_number": "20-828", "syllabus": "Respondents Yassir Fazaga, Ali Malik, and Yasser Abdel Rahim, members of Muslim communities in California, filed a putative class action against the Federal Bureau of Investigation and certain Government officials, claiming that the Government subjected them and other Muslims to illegal surveillance under the Foreign Intelligence Surveillance Act of 1978 (FISA). FISA provides special procedures for use when the Government wishes to conduct foreign intelligence surveillance. Relevant here, FISA provides a procedure under which a trial-level court or other authority may consider the legality of electronic surveillance conducted under FISA and order specified forms of relief. See 50 U. S. C. §1806(f). The Government moved to dismiss most of respondents’ claims under the \"state secrets\" privilege. See, e.g., General Dynamics Corp. v. United States, 563 U. S. 478. After reviewing both public and classified filings, the District Court held that the state secrets privilege required dismissal of all respondents’ claims against the Government, except for one claim under §1810, which it dismissed on other grounds. The District Court determined dismissal appropriate because litigation of the dismissed claims \"would require or unjustifiably risk disclosure of secret and classified information.\" 884 F. Supp. 2d 1022, 1028–1029. The Ninth Circuit reversed in relevant part, holding that \"Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance.\" 965 F. 3d 1015, 1052. Held: Section 1806(f) does not displace the state secrets privilege. Pp. 7– 13. (a) The case requires the Court to determine whether FISA affects the availability or scope of the long-established \"Government privilege against court-ordered disclosure of state and military secrets.\" General Dynamics Corp., 563 U. S., at 484. Congress enacted FISA to provide special procedures for use when the Government wishes to conduct foreign intelligence surveillance in light of the special national-security concerns such surveillance may present. See Clapper v. Amnesty Int’l USA, 568 U. S. 398, 402. When information is lawfully gathered pursuant to FISA, §1806 permits its use in judicial and administrative proceedings but specifies procedures that must be followed before that is done. Subsection (f) of §1806 permits a court to determine whether information was lawfully gathered \"in camera and ex parte\" if the \"Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States.\" §1806(f). Central to the parties’ argumentation in this Court, and to the Ninth Circuit’s decision below, is the correct interpretation of §1806(f). The Ninth Circuit’s conclusion that Congress intended FISA to displace the state secrets privilege rested in part on its conclusion that §1806(f)’s procedures applied to this case. The Government contends that the Ninth Circuit erred because §1806(f) is a narrow provision that applies only when an aggrieved person challenges the admissibility of surveillance evidence. Respondents interpret §1806(f) more broadly, arguing that it also can be triggered when a civil litigant seeks to obtain secret surveillance information, as respondents did here, and when the Government moves to dismiss a case pursuant to the state secrets privilege. The Court does not resolve the parties’ dispute about the meaning of §1806(f) because the Court reverses the Ninth Circuit on an alternative ground. Pp. 7–9. (b) Section 1806(f) does not displace the state secrets privilege, for two reasons. Pp. 9–13. (1) The text of FISA weighs heavily against the argument that Congress intended FISA to displace the state secrets privilege. The absence of any reference to the state secrets privilege in FISA is strong evidence that the availability of the privilege was not altered when Congress passed the Act. Regardless of whether the state secrets privilege is rooted only in the common law (as respondents argue) or also in the Constitution (as the Government argues), the privilege should not be held to have been abrogated or limited unless Congress has at least used clear statutory language. See Norfolk Redevelopment and Housing Authority v. Chesapeake & Potomac Telephone Co. of Va., 464 U. S. 30, 35; Jennings v. Rodriguez, 583 U. S. __, __. P. 9. (2) Even on respondents’ interpretation of §1806(f), nothing about the operation of §1806(f) is incompatible with the state secrets privilege. Although the Ninth Circuit and respondents view §1806(f) and the privilege as \"animated by the same concerns\" and operating in fundamentally similar ways, that is simply wrong. As an initial matter, it seems clear that the state secrets privilege will not be invoked in the great majority of cases in which §1806(f) is triggered. And in the few cases in which an aggrieved party, rather than the Government, triggers the application of §1806(f), no clash exists between the statute and the privilege because they (1) require courts to conduct different inquiries, (2) authorize courts to award different forms of relief, and (3) direct the parties and the courts to follow different procedures. First, the central question for courts to determine under §1806(f) is \"whether the surveillance of the aggrieved person was lawfully authorized and conducted.\" By contrast, the state secrets privilege asks whether the disclosure of evidence would harm national security interests, regardless of whether the evidence was lawfully obtained. Second, the relief available under the statute and under the privilege differs. Under §1806, a court has no authority to award any relief to an aggrieved person if it finds the evidence was lawfully obtained, whereas a court considering an assertion of the state secrets privilege may order the disclosure of lawfully obtained evidence if it finds that disclosure would not affect national security. And under respondents’ interpretation of §1806(f), a court must award relief to an aggrieved person against whom evidence was unlawfully obtained, but under the state secrets privilege, lawfulness is not determinative. Moreover, the potential availability of dismissal on the pleadings pursuant to the state secrets privilege shows that the privilege and §1806(f) operate differently. Third, inquiries under §1806(f) and the state secrets privilege are procedurally different. Section 1806(f) allows \"review in camera and ex parte\" of materials \"necessary to determine\" whether the surveillance was lawful. Under the state secrets privilege, however, examination of the evidence at issue, \"even by the judge alone, in chambers,\" should not be required if the Government shows \"a reasonable danger that compulsion of the evidence\" will expose information that \"should not be divulged\" in \"the interest of national security.\" United States v. Reynolds, 345 U. S. 1, 10. Pp. 9–13. (c) This decision answers the narrow question whether §1806(f) displaces the state secrets privilege. The Court does not decide which party’s interpretation of §1806(f) is correct, whether the Government’s evidence is privileged, or whether the District Court was correct to dismiss respondents’ claims on the pleadings. P. 13. 965 F. 3d 1015, reversed and remanded.", "opinion": "In this case, we consider the relationship between the longstanding \"state secrets\" privilege and a provision of the Foreign Intelligence Surveillance Act of 1978 (FISA), 92 Stat. 1783, 50 U. S. C. §1801 et seq., that provides a procedure under which a trial-level court or other authority may consider the legality of electronic surveillance conducted under FISA and may thereafter order specified forms of relief. See §1806(f ). This case was brought in federal court by three Muslim residents of Southern California who allege that the Federal Bureau of Investigation illegally surveilled them and others under FISA because of their religion. In response, the defendants (hereinafter Government) invoked the state secrets privilege and asked the District Court to dismiss most of respondents’ claims because the disclosure of counter-intelligence information that was vital to an evaluation of those claims would threaten national-security interests. The District Court agreed with the Government’s argument and dismissed the claims in question, but the Ninth Circuit reversed, reasoning that §1806(f ) \"displaced\" the state secrets privilege. We now hold that §1806(f ) has no such effect, and we therefore reverse. I A This Court has repeatedly recognized \"a Government privilege against court-ordered disclosure of state and military secrets,\" General Dynamics Corp. v. United States, 563 U. S. 478, 484 (2011); see also United States v. Zubaydah, ___ U. S. ___, ___ (2022) (slip op., at 7); Tenet v. Doe, 544 U. S. 1, 11 (2005); United States v. Reynolds, 345 U. S. 1, 6–7 (1953); Totten v. United States, 92 U. S. 105, 107 (1876). The present case requires us to determine whether FISA affects the availability or scope of that longestablished privilege. Electronic surveillance for ordinary criminal law enforcement purposes is governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. §§2510–2522, but foreign intelligence surveillance presents special national-security concerns, and Congress therefore enacted FISA to provide special procedures for use when the Government wishes to conduct such surveillance. See Clapper v. Amnesty Int’l USA, 568 U. S. 398, 402 (2013). FISA established the Foreign Intelligence Surveillance Court to entertain applications for and, where appropriate, to issue orders authorizing such surveillance. See id., at 402–403; 50 U. S. C. §§1803–1805. When information is lawfully gathered pursuant to such an order, §1806 permits its use in judicial and administrative proceedings and specifies the procedure that must be followed before that is done. Under §1806(c), \"[w]henever the Government intends to enter into evidence or otherwise use or disclose . . . against an aggrieved person\" 1 in any court proceeding2 any information obtained under FISA, the United States must \"notify\" both \"the aggrieved person and the court.\" Subsection (e) then allows anyone against whom the Government intends to use such information to move to suppress that evidence on the ground that it was \"unlawfully acquired\" or that \"the surveillance was not made in conformity with an order of authorization or approval.\" §1806(e). The specific provision at issue here, subsection (f ) of §1806, establishes procedures for determining the lawfulness and admissibility of such information.3 That subsection permits a court to make that determination \"in camera and ex parte\" if the \"Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States.\" §1806(f). Three circumstances trigger these procedures: first, where the United States or a state authority gives notice under §1806(c) or (d) that it intends to \"enter into evidence or otherwise use or disclose\" FISA information; second, where an aggrieved person files a motion to suppress such information under subsection (e); and third, where \"any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter.\" §1806(f ). Once §1806(f )’s in camera and ex parte procedures are triggered, the court must review the \"application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.\" Ibid. If the court finds that the evidence was unlawfully obtained, it must \"suppress\" the evidence or \"otherwise grant the motion of the aggrieved person.\" §1806(g). But if the court finds that the evidence was lawfully obtained, it must \"deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.\" Ibid. B Respondents Yassir Fazaga, Ali Malik, and Yasser Abdel Rahim are members of Muslim communities in southern California who claim that the Federal Bureau of Investigation illegally surveilled them because of their religion. Respondents allege that the FBI directed a confidential informant to \"gather information on Muslims in an indiscriminate manner.\" App. 97, First Amended Complaint ¶99. This informant purportedly infiltrated a Muslim community and gathered \"hundreds of phone numbers and thousands of email addresses of Muslims\"; \"hundreds of hours of video recordings\" made inside mosques, homes, and other private locations; and \"thousands of hours of audio recording of conversations\" and of \"public discussion groups, classes, and lectures.\" Id., at 194, Decl. of Craig Monteilh ¶71. Respondents allege that the surveillance operation ended when the informant, at the FBI’s instruction, began asking members of the community about violent jihad, and some of those individuals reported the informant to the FBI and local police. In 2011, respondents filed this putative class action against the United States, the FBI, and two FBI officials in their official capacities.4 Respondents claimed that the Government’s unlawful information-gathering operation violated their rights under the Establishment Clause; the Free Exercise Clause; the Fourth Amendment; the equal protection component of the Fifth Amendment’s Due Process Clause; the Religious Freedom Restoration Act, 42 U. S. C. §2000bb et seq.; the Federal Tort Claims Act, 28 U. S. C. §1346; FISA, 50 U. S. C. §1810; the Privacy Act, 5 U. S. C. §552a; and California law. The Government moved to dismiss all those claims and argued, among other things, that the state secrets privilege required dismissal of most of them. To that end, Attorney General Holder filed a declaration asserting a \"formal claim of the state secrets privilege in order to protect the national security interests of the United States.\" App. 26, Decl. of Eric H. Holder ¶1. This claim applied to the following categories of information: information that could \"confirm or deny whether a particular individual was or was not the subject of an FBI counterterrorism investigation,\" information that could reveal the \"initial reasons\" for or the \"status and results\" of an \"FBI counterterrorism investigation,\" and information that could reveal the \"sources and methods\" used in such an investigation. Id., at 28, ¶4. An Assistant Director of the FBI filed a public declaration explaining why disclosure \"reasonably could be expected to cause significant harm to national security,\" id., at 60, Decl. of Mark F. Giuliano ¶32, along with a more detailed classified declaration. After reviewing both \"the public and classified filings,\" the District Court held that the state secrets privilege required dismissal of all respondents’ claims against the Government, except for the claim under FISA, 50 U. S. C. §1810, which it dismissed on sovereign-immunity grounds. 884 F. Supp. 2d 1022, 1049 (CD Cal. 2012); 885 F. Supp. 2d 978, 982–984 (CD Cal. 2012). The District Court concluded that litigation of the claims it dismissed \"would require or unjustifiably risk disclosure of secret and classified information.\" 884 F. Supp. 2d, at 1028–1029. The Ninth Circuit reversed in relevant part and held that \"Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance.\" 965 F. 3d 1015, 1052 (2020). That holding depended on two subsidiary conclusions. First, the Court of Appeals held that \"§1806(f ) procedures are to be used when an aggrieved person affirmatively challenges, in any civil case, the legality of electronic surveillance or its use in litigation, whether the challenge is under FISA itself, the Constitution, or any other law.\" Ibid. Second, the Court of Appeals held that, where §1806(f )’s procedures apply, it \"speak[s] quite directly to the question otherwise answered by the dismissal remedy sometimes required by the common law state secrets privilege.\" Id., at 1045. That is so, the Court of Appeals reasoned, because §1806(f )’s procedures are \"animated by the same concerns\" as the state secrets privilege and \"triggered\" by a \"nearly identical\" process. Id., at 1046. It thus reversed the District Court’s dismissal of respondents’ claims on state secrets grounds. The Ninth Circuit denied rehearing en banc over the dissent of Judge Bumatay and nine other judges. We granted certiorari to decide whether §1806(f) displaces the state secrets privilege. 594 U. S. ___ (2021). II A Much of the parties’ argumentation in this Court concerns the correct interpretation of §1806(f ). The Government contends that the Ninth Circuit erred because §1806(f ) is \"‘relevant only when a litigant challenges the admissibility of the government’s surveillance evidence.’\" Reply Brief for Petitioners 2 (quoting Wikimedia Foundation v. NSA, 14 F. 4th 276, 294 (CA4 2021)). But respondents interpret that provision more broadly. Respondents do not dispute that §1806(f ) applies when the Government seeks to introduce evidence and a private party seeks to prevent such use, but they argue that §1806(f ) is also sometimes triggered when \"a civil litigant seeks to obtain such secret information.\" Brief for Respondents 34. And they say that §1806(f ) applies in this case for two reasons. First, they note that §1806(f ) is triggered not only when the Government gives notice that it intends to \"enter into evidence\" information obtained by means of covered surveillance but also when it notifies the court that it \"intends to . . . otherwise use\" such information. §1806(c). Respondents argue that the Government \"use[d]\" information gathered under FISA when it invoked the state secrets privilege and asked the District Court to dismiss some of respondents’ claims pursuant to that privilege. In respondents’ view, the attempt to leverage a claim of privilege into a dismissal constitutes a \"use\" of FISA information against them. See Brief for Respondents 35–38; Tr. of Oral Arg. 71–73. Second, respondents note that §1806(f ) applies when an \"aggrieved person\" makes \"any motion or request\" to \"discover or obtain\" electronic-surveillance evidence, and they say that their complaint’s request for an injunction ordering the Government to \"destroy or return any information gathered through the unlawful surveillance program\" triggered that provision. App. 146; see also Brief for Respondents 39–40.5 That prayer for relief, they maintain, constituted a \"request\" to \"discover or obtain\" the information. The Government disagrees with both of these theories. It argues that the assertion of the state secrets privilege did not constitute a \"use\" of \"information obtained or derived from an electronic surveillance.\" On the contrary, the Government contends, the assertion of the privilege represented an attempt to prevent the use of that information. Reply Brief for Petitioners 2–3. In addition, the Government maintains that respondents never filed a \"‘motion or request . . . to discover [or] obtain’\" information derived from or materials relating to FISA surveillance because their complaint’s prayer for relief did not constitute a \"‘motion or request.’\" Id., at 5. We need not resolve this dispute about the meaning of §1806(f ) because we reverse the Ninth Circuit on an alternative ground—namely, that even as interpreted by respondents, §1806(f ) does not displace the state secrets privilege. B We reach this conclusion for two reasons. 1 First, the text of FISA weighs heavily against respondents’ displacement argument. FISA makes no reference to the state secrets privilege. It neither mentions the privilege by name nor uses any identifiable synonym, and its only reference to the subject of privilege reflects a desire to avoid the alteration of privilege law. See §1806(a).6 The absence of any statutory reference to the state secrets privilege is strong evidence that the availability of the privilege was not altered in any way. Regardless of whether the state secrets privilege is rooted only in the common law (as respondents argue) or also in the Constitution (as the Government argues), the privilege should not be held to have been abrogated or limited unless Congress has at least used clear statutory language. See Norfolk Redevelopment and Housing Authority v. Chesapeake & Potomac Telephone Co. of Va., 464 U. S. 30, 35 (1983) (presumption against repeal of the common law); Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op., at 12) (canon of constitutional avoidance). 2 Even if respondents’ interpretation of §1806(f ) is accepted, nothing about the operation of that provision is at all incompatible with the state secrets privilege. The Ninth Circuit thought that §1806(f ) and the privilege are \"animated by the same concerns,\" 965 F. 3d, at 1046, and respondents argue that they operate in \"fundamentally similar\" ways, Brief for Respondents 54, but that is simply wrong. As an initial matter, it seems clear that the state secrets privilege will not be invoked in the great majority of cases in which §1806(f ) is triggered. Section 1806(f ) is most likely to come into play when the Government seeks to use FISA evidence in a judicial or administrative proceeding, and the Government will obviously not invoke the state secrets privilege to block disclosure of information that it wishes to use. Section 1806(f ) is much more likely to be invoked in cases of this sort than in cases in which an aggrieved person takes the lead and seeks to obtain or disclose FISA information for a simple reason: individuals affected by FISA surveillance are very often unaware of the surveillance unless it is revealed by the Government. See 2 D. Kris & J. Wilson, National Security Investigations & Prosecutions §30:4 (3d ed. 2019). With these cases out of the way, what is left are cases in which an aggrieved party, rather than the Government, triggers the application of §1806(f ), but even under respondents’ interpretation of that provision, there is no clash between §1806(f ) and the state secrets privilege. The statute and the privilege (1) require courts to conduct different inquiries, (2) authorize courts to award different forms of relief, and (3) direct the parties and the courts to follow different procedures. First and most importantly, the inquiries required by §1806(f ) and our state secrets jurisprudence are fundamentally different. Under §1806(f ), the central question is the lawfulness of surveillance. Courts are instructed to determine \"whether the surveillance of the aggrieved person was lawfully authorized and conducted.\" §1806(f ) (emphasis added). By contrast, when the state secrets privilege is asserted, the central question is not whether the evidence in question was lawfully obtained but whether its disclosure would harm national-security interests. As the Court explained in Reynolds, the privilege applies where \"there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.\" 345 U. S., at 10; see also, e.g., Zubaydah, ___ U. S., at ___ (slip op., at 7) (\"The state-secrets privilege permits the Government to prevent disclosure of information when that disclosure would harm national security interests\"); General Dynamics, 563 U. S., at 484 (noting that the privilege exists to serve the \"sometimes-compelling necessity of governmental secrecy\" over \"military, intelligence, and diplomatic\" information). We have never suggested that an assertion of the state secrets privilege can be defeated by showing that the evidence was unlawfully obtained. Second, in accordance with the fundamentally different inquiries called for under §1806(f ) and the state secrets privilege, the available relief also differs. Under §1806, a court has no authority to award any relief to an aggrieved person if it finds that the evidence was lawfully obtained, whereas a court considering an assertion of the state secrets privilege may order the disclosure of lawfully obtained evidence if it finds that disclosure would not affect national security (assuming that the information is otherwise subject to disclosure). And under §1806(f ), as interpreted by respondents, a court must award relief to an aggrieved person if it finds that the evidence was unlawfully obtained, but under the state secrets privilege, lawfulness is not determinative. In addition, the state secrets privilege, unlike §1806, sometimes authorizes district courts to dismiss claims on the pleadings. We need not delineate the circumstances in which dismissal is appropriate (or determine whether dismissal was proper in this case), but even respondents concede that dismissal is available in a \"spy-contracting case\" when a case’s \"very subject matter is secret.\" Brief for Respondents 25; see also Tenet, 544 U. S., at 11; Totten, 92 U. S., at 107; General Dynamics, 563 U. S., at 492. The availability of dismissal pursuant to the state secrets privilege in at least some circumstances shows that the privilege and §1806(f ) operate differently. Third, the inquiries under §1806(f ) and the state secrets privilege are procedurally different. Section 1806(f ) allows the Attorney General to obtain in camera and ex parte review of the relevant surveillance evidence if he \"files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States.\" §1806(f ). By contrast, the state secrets privilege may be invoked not just by the Attorney General but by \"the head of the department which has control over the matter, after actual personal consideration by that officer.\" Reynolds, 345 U. S., at 8. In Reynolds, for example, the Judge Advocate General for the United States Air Force asserted the privilege. See id., at 4; see also Zubaydah, ___ U. S., at ___ (slip op., at 5) (asserted by the Director of the Central Intelligence Agency); General Dynamics, 563 U. S., at 482 (asserted by the Acting Secretary of the Air Force). The procedures used to evaluate assertions of the state secrets privilege may also, in some circumstances, be more protective of information than the procedures prescribed by §1806(f ). Subsection (f ) allows \"review in camera and ex parte\" of materials that are \"necessary to determine\" whether the surveillance was lawful. Nothing in that subsection expressly provides that the Government may shield highly classified information from review by the judge if the information is \"necessary\" to the determination of the legality of surveillance. Reynolds, on the other hand, expressly states that examination of the evidence at issue, \"even by the judge alone, in chambers,\" should not be required if the Government shows \"a reasonable danger that compulsion of the evidence\" will expose information that \"should not be divulged\" in \"the interest of national security.\" 345 U. S., at 10. Thus, the state secrets privilege, unlike §1806(f ), may sometimes preclude even in camera, ex parte review of the relevant evidence. For those reasons, we conclude that Congress did not eliminate, curtail, or modify the state secrets privilege when it enacted §1806(f). III We reiterate that today’s decision addresses only the narrow question whether §1806(f ) displaces the state secrets privilege. Because we conclude that §1806(f ) does not have that effect under either party’s interpretation of the statute, we do not decide which interpretation is correct. Nor do we decide whether the Government’s evidence is privileged or whether the District Court was correct to dismiss respondents’ claims on the pleadings. According to respondents, the state secrets privilege authorizes dismissal only where the case concerns a Government contract or where the very subject of the action is secret. See Brief for Respondents 23–34. The Government, by contrast, relies on lower court cases permitting dismissal in other circumstances. See Reply Brief for Petitioners 19, n. 2 (citing cases). The Ninth Circuit did not decide those questions, and we do not resolve them here. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "20-915", "syllabus": "A valid copyright registration provides a copyright holder with important legal advantages, including the right to bring a \"civil action for infringement\" of the copyrighted work. 17 U. S. C. §411(a). Petitioner Unicolors, the owner of copyrights in various fabric designs, filed a copyright infringement action against H&M Hennes & Mauritz (H&M). A jury found in favor of Unicolors. H&M sought judgment as a matter of law, arguing that Unicolors could not maintain an infringement suit because Unicolors knowingly included inaccurate information on its registration application, rendering its copyright registration invalid. The alleged inaccuracy stemmed from Unicolors having filed a single application seeking registration for 31 separate works despite a Copyright Office regulation that provides that a single application may cover multiple works only if they were \"included in the same unit of publication.\" H&M argued that Unicolors did not meet this requirement because Unicolors had initially made some of the 31 designs available for sale exclusively to certain customers, while offering the rest to the general public. The District Court determined that because Unicolors did not know when it filed its application that it had failed to satisfy the \"single unit of publication\" requirement, Unicolors’ copyright registration remained valid by operation of the safe harbor provision provided under §411(b)(1)(A). On appeal, the Ninth Circuit determined that it did not matter whether Unicolors was aware that it had failed to satisfy the single unit of publication requirement, because the safe harbor excuses only good-faith mistakes of fact, not law. Unicolors had known the relevant facts, so its knowledge of the law (or lack thereof ) was irrelevant. Held: Section 411(b) does not distinguish between a mistake of law and a mistake of fact; lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration under §411(b)(1)(A)’s safe harbor. Pp. 4–9. (a) The Copyright Act provides that a certificate of registration is valid, even though it contains inaccurate information, as long as the copyright holder lacked \"knowledge that it was inaccurate.\" §411(b)(1)(A). Case law and the dictionary instruct that \"knowledge\" has historically \"meant and still means the fact or condition of being aware of something.\" Intel Corp. Investment Policy Comm. v. Sulyma, 589 U. S. ___, ___ (internal quotation marks omitted). Nothing in §411(b)(1)(A) suggests that the safe harbor applies differently simply because an applicant made a mistake of law as opposed to a mistake of fact. If Unicolors was not aware of the legal requirement that rendered information in its application inaccurate, it could not have included the inaccurate information \"with knowledge that it was inaccurate.\" §411(b)(1)(A). Pp. 4–5. (b) Nearby statutory provisions help confirm that here \"knowledge\" refers to knowledge of the law as well as the facts. Registration applications call for information that requires both legal and factual knowledge. See, e.g., §409(4) (whether a work was made \"for hire\"); §409(8) (when and where the work was \"published\"); §409(9) (whether the work is \"a compilation or derivative work\"). Inaccurate information in a registration may arise from a mistake of law or a mistake of fact. Nothing in the statutory language suggests that Congress wanted to forgive applicants—many of whom lack legal training—for factual but not (often esoteric) legal mistakes. Moreover, had Congress intended a scienter requirement other than actual knowledge, it would have said so explicitly, as it did in other parts of the Copyright Act. Indeed, cases decided before Congress enacted §411(b) overwhelmingly concluded that inadvertent mistakes on registration certificates— many of which involved mistakes of law—neither invalidated copyright registrations nor disallowed infringement actions. The Court finds no indication that Congress intended to alter this well-established rule when it enacted §411(b). Pp. 5–7. (c) Those who consider legislative history will find indications that Congress enacted §411(b) to make it easier, not more difficult, for nonlawyers to obtain valid copyright registrations. It did so in part by \"eliminating loopholes\" that allowed infringers to exploit mistakes in the application process to prevent enforcement of otherwise validly registered copyrights. H. R. Rep. No. 110–617, p. 20. Given this history, it would make no sense if §411(b) left copyright registrations exposed to invalidation based on applicants’ good-faith misunderstandings of the details of copyright law. P. 7. (d) H&M’s remaining arguments are unavailing. First, the Court’s interpretation of the statute will not allow copyright holders to avoid the consequences of an inaccurate application by claiming lack of knowledge. As in other legal contexts, courts need not automatically accept a copyright holder’s claim that it was unaware of the relevant legal requirements. Willful blindness may support a finding of actual knowledge. Additionally, circumstantial evidence may demonstrate that an applicant was actually aware of, or willfully blind to, legally inaccurate information. Second, the legal maxim that \"ignorance of the law is no excuse\" does not apply in this civil case concerning the scope of a statutory safe harbor that arises from ignorance of collateral legal requirements. Finally, the \"knowledge\" question that the parties have argued, and which the Court decides, was a \"subsidiary question fairly included\" in the petition’s question presented. See this Court’s Rule 14.1(a). And the Ninth Circuit explicitly addressed the knowledge issue when it held that Unicolors’ \"knowledge\" of the facts underlying the inaccuracy on its application was sufficient to demonstrate knowledge under §411(b)(1)(A) without regard to Unicolors’ knowledge of the relevant law. Pp. 8–9. 959 F. 3d 1194, vacated and remanded.", "opinion": "A valid copyright registration provides a copyright holder with important and sometimes necessary legal advantages. It is, for example, a prerequisite for bringing a \"civil action for infringement\" of the copyrighted work. 17 U. S. C. §411(a). Additionally, a plaintiff in an infringement action normally cannot obtain an award of statutory damages or attorney’s fees for infringement that occurred prior to registration. §412. To obtain registration, the author of a work must submit to the Register of Copyrights a copy of the work and an application. §§408, 409. The application must provide information about the work. §409. Some of this information is purely factual, but some of it incorporates legal conclusions. Ibid. If the Register determines that the work is copyrightable and meets other statutory requirements, she will issue a certificate of registration. §410(a). The information on this certificate reflects the information that the copyright holder provided on the application. Ibid. Naturally, the information provided on the application for registration should be accurate. Nevertheless, the Copyright Act provides a safe harbor. It says that a certificate of registration is valid \"regardless of whether the certificate contains any inaccurate information, unless— \"(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and \"(B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.\" §411(b)(1) (emphasis added). The important point for our purposes is that a certificate of registration is valid even though it contains inaccurate information, as long as the copyright holder lacked \"knowledge that it was inaccurate.\" §411(b)(1)(A). The question before us concerns the scope of the phrase \"with knowledge that it was inaccurate.\" The Court of Appeals for the Ninth Circuit believed that a copyright holder cannot benefit from the safe harbor and save its copyright registration from invalidation if its lack of knowledge stems from a failure to understand the law rather than a failure to understand the facts. In our view, however, §411(b) does not distinguish between a mistake of law and a mistake of fact. Lack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration. We therefore vacate the Court of Appeals’ contrary holding. I The petitioner here, Unicolors, owns copyrights in various fabric designs. App. 50–51. It sued the respondent, H&M Hennes & Mauritz, L.P. (H&M), for copyright infringement. 959 F. 3d 1194, 1195 (CA9 2020). The jury found in Unicolors’ favor, but H&M asked the trial court to grant it judgment as a matter of law. Id., at 1196–1197. H&M argued, among other things, that Unicolors’ registration certificate was invalid (and that therefore Unicolors could not sue for infringement) because it contained inaccurate information. Id., at 1197–1198; see also §411(a). Specifically, H&M argued that Unicolors’ registration certificate was inaccurate because Unicolors had improperly filed a single application seeking registration for 31 separate works. App. 91–92, 170–172. H&M relied on a Copyright Office regulation, which provides that a single registration can cover multiple works only if those works were \"included in the same unit of publication.\" Id., at 170 (emphasis added); 37 CFR §202.3(b)(4) (2020). H&M argued that the 31 fabric designs covered by Unicolors’ single application (and therefore single registration) had not been published as a single unit of publication because Unicolors had initially made some of the designs available for sale exclusively to certain customers, while other designs were immediately available to the general public. App. 170–171. Because the first statutory requirement for invalidating Unicolors’ registration (a knowing inaccuracy) was satisfied, H&M argued, the District Court should move to the second requirement and ask the Register of Copyrights whether it would have refused to register Unicolors’ copyright if it had been aware of the inaccuracy. Id., at 172– 173; see also §§411(b)(1)(B), (b)(2). The District Court denied H&M’s motion. Id., at 202. Among other things, it noted that \"a registration remains effective despite containing inaccurate information\" if the registrant included the inaccurate information in the registration application without \"knowledge that it was inaccurate.\" Id., at 180–181 (internal quotation marks omitted). Because Unicolors did not know that it had failed to satisfy the \"single unit of publication\" requirement when it filed its application, the purported inaccuracy could not invalidate the registration. Id., at 182. The Ninth Circuit disagreed. It agreed with H&M that Unicolors had failed to satisfy the \"single unit of publication\" requirement (because it offered some of the 31 designs exclusively to certain customers). 959 F. 3d, at 1198–1200. But did Unicolors know about this inaccuracy? In the Ninth Circuit’s view, it did not matter whether Unicolors did or did not know that it had failed to satisfy the \"single unit of publication\" requirement. Id., at 1200. That was because, in the Ninth Circuit’s view, the statute excused only goodfaith mistakes of fact, not law. Ibid. And Unicolors had known the relevant facts, namely, that some of the 31 designs had initially been reserved for certain customers. Ibid. Unicolors sought certiorari, asking us to review the Ninth Circuit’s interpretation of §411(b)(1)(A). We granted the petition. II A brief analogy may help explain the issue we must decide. Suppose that John, seeing a flash of red in a tree, says, \"There is a cardinal.\" But he is wrong. The bird is not a cardinal; it is a scarlet tanager. John’s statement is inaccurate. But what kind of mistake has John made? John may have failed to see the bird’s black wings. In that case, he has made a mistake about the brute facts. Or John may have seen the bird perfectly well, noting all of its relevant features, but, not being much of a birdwatcher, he may not have known that a tanager (unlike a cardinal) has black wings. In that case, John has made a labeling mistake. He saw the bird correctly, but does not know how to label what he saw. Here, Unicolors’ mistake is a mistake of labeling. But unlike John (who might consult an ornithologist about the birds), Unicolors must look to judges and lawyers as experts regarding the proper scope of the label \"single unit of publication.\" The labeling problem here is one of law. Does that difference matter here? Cf. United States v. Fifty-Three (53) Eclectus Parrots, 685 F. 2d 1131, 1137 (CA9 1982). We think it does not. Our reasons are straightforward. For one thing, we follow the text of the statute. See Hardt v. Reliance Standard Life Ins. Co., 560 U. S. 242, 251 (2010). Section 411(b)(1) says that Unicolors’ registration is valid \"regardless of whether the [registration] certificate contains any inaccurate information, unless . . . the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate.\" Both case law and the dictionary tell us that \"knowledge\" has historically \"meant and still means ‘the fact or condition of being aware of something.’\" Intel Corp. Investment Policy Comm. v. Sulyma, 589 U. S. ___, ___ (2020) (slip op., at 6) (quoting Webster’s Seventh New Collegiate Dictionary 469 (1967)); see also Black’s Law Dictionary 888 (8th ed. 2004); New Oxford American Dictionary 938 (def. 2) (2d ed. 2005); Webster’s New College Dictionary 625 (3d ed. 2008). Unicolors says that, when it submitted its registration application, it was not aware (as the Ninth Circuit would later hold) that the 31 designs it was registering together did not satisfy the \"single unit of publication\" requirement. If Unicolors was not aware of the legal requirement that rendered the information in its application inaccurate, it did not include that information in its application \"with knowledge that it was inaccurate.\" §411(b)(1)(A) (emphasis added). Nothing in the statutory language suggests that this straightforward conclusion should be any different simply because there was a mistake of law as opposed to a mistake of fact. To the contrary, nearby statutory provisions help confirm that here \"knowledge\" refers to knowledge of the law as well as the facts. Registration applications call for information that requires both legal and factual knowledge. See, e.g., §409(4) (whether a work was made \"for hire\"); §409(8) (when and where the work was \"published\"); §409(9) (whether the work is \"a compilation or derivative work\"). Inaccurate information in a registration is therefore equally (or more) likely to arise from a mistake of law as a mistake of fact. That is especially true because applicants include novelists, poets, painters, designers, and others without legal training. Nothing in the statutory language suggests that Congress wanted to forgive those applicants’ factual but not their (often esoteric) legal mistakes. Other provisions of the Copyright Act confirm that, in this context, the word \"knowledge\" means actual, subjective awareness of both the facts and the law. Those provisions suggest that if Congress had intended to impose a scienter standard other than actual knowledge, it would have said so explicitly. See, e.g., §121A(a) (safe harbor for entities that \"did not know or have reasonable grounds to know\" that exported works would be used by ineligible persons); §512(c)(1)(A) (safe harbor for internet service providers who are not actually aware of infringing activities on their systems and are \"not aware of facts or circumstances from which infringing activity is apparent\"); §901(a)(8) (\"‘notice of protection’\" requires \"actual knowledge . . . or reasonable grounds to believe\" that a \"work is protected\"); §1202(b) (civil remedies for certain acts performed by a person who knows or has \"reasonable grounds to know\" that he or she was facilitating infringement); §1401(c)(6)(C)(ii) (for purposes of paragraph regarding the \"[u]nauthorized use of pre-1972 sound recordings,\" \"knowing\" includes one who \"has actual knowledge,\" \"acts in deliberate ignorance of the truth or falsity of the information,\" or \"acts in grossly negligent disregard of the truth or falsity of the information\"). The absence of similar language in the statutory provision before us tends to confirm our conclusion that Congress intended \"knowledge\" here to bear its ordinary meaning. See Nken v. Holder, 556 U. S. 418, 430 (2009). For another thing, cases decided before Congress enacted §411(b) \"overwhelming[ly held] that inadvertent mistakes on registration certificates [did] not invalidate a copyright and thus [did] not bar infringement actions.\" Urantia Foundation v. Maaherra, 114 F. 3d 955, 963 (CA9 1997). Many of those cases involved mistakes of law. See, e.g., id., at 961, 963; Billy-Bob Teeth, Inc. v. Novelty, Inc., 329 F. 3d 586, 591 (CA7 2003); Advisers, Inc. v. Wiesen-Hart, Inc., 238 F. 2d 706, 707–708 (CA6 1956) (per curiam). We can find no indication that Congress intended to alter this well-established rule when it enacted §411(b). See Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 813 (1989) (\"When Congress codifies a judicially defined concept, it is presumed, absent an express statement to the contrary, that Congress intended to adopt the interpretation placed on that concept by the courts\"); see also Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. 519, 538 (2013) (similar). Further, those who consider legislative history will find that history persuasive here. It indicates that Congress enacted §411(b) to make it easier, not more difficult, for nonlawyers to obtain valid copyright registrations. The House Report states that its purpose was to \"improve intellectual property enforcement in the United States and abroad.\" H. R. Rep. No. 110–617, p. 20 (2008). It did so in part by \"eliminating loopholes that might prevent enforcement of otherwise validly registered copyrights.\" Ibid. The Report specifically notes that some defendants in copyright infringement cases had \"argued . . . that a mistake in the registration documents, such as checking the wrong box on the registration form, renders a registration invalid and thus forecloses the availability of statutory damages.\" Id., at 24. Congress intended to deny infringers the ability to \"exploi[t] this potential loophole.\" Ibid. Of course, an applicant for a copyright registration—especially one who is not a lawyer—might check the wrong box on the registration documents as a result of a legal, as well as a factual, error. Given this history, it would make no sense if §411(b) left copyright registrations exposed to invalidation based on applicants’ good-faith misunderstandings of the details of copyright law. III H&M argues that our interpretation of the statute will make it too easy for copyright holders, by claiming lack of knowledge, to avoid the consequences of an inaccurate application. But courts need not automatically accept a copyright holder’s claim that it was unaware of the relevant legal requirements of copyright law. We have recognized in civil cases that willful blindness may support a finding of actual knowledge. Intel Corp., 589 U. S., at ___–___ (slip op., at 11–12). Circumstantial evidence, including the significance of the legal error, the complexity of the relevant rule, the applicant’s experience with copyright law, and other such matters, may also lead a court to find that an applicant was actually aware of, or willfully blind to, legally inaccurate information. See id., at ___ (slip op., at 11). H&M also argues that our interpretation is foreclosed by the legal maxim that \"ignorance of the law is no excuse.\" See Brief for Respondent 41–43. This maxim \"normally applies where a defendant has the requisite mental state in respect to the elements of [a] crime but claims to be unaware of the existence of a statute proscribing his conduct.\" Rehaif v. United States, 588 U. S. ___, ___ (2019) (slip op., at 8) (internal quotation marks omitted). It does not apply in this civil case concerning the scope of a safe harbor that arises from ignorance of collateral legal requirements. See ibid. Finally, H&M claims that neither Unicolors’ petition for certiorari nor the Ninth Circuit’s opinion addressed the question we decide here. The petition, however, asked us to decide whether a registration may be invalidated under §411(b) even though there are no \"indicia of fraud . . . as to the work at issue in the subject copyright registration.\" Pet. for Cert. i. Fraud typically requires \"[a] knowing misrepresentation . . . of a material fact.\" Black’s Law Dictionary 802 (11th ed. 2019) (emphasis added). If, as the Ninth Circuit concluded, §411(b)(1)(A) does not require \"knowledge\" of legal errors, then it does not always require knowledge of the misrepresentation in the registration application, and therefore does not require the typical elements of fraud. Thus, the \"knowledge\" question that the parties have argued, and which we decide, was a \"subsidiary question fairly included\" in the petition’s question presented. See this Court’s Rule 14.1(a). As to the decision below, the Ninth Circuit wrote that \"the knowledge inquiry is not whether Unicolors knew that including a mixture of confined and non-confined designs would run afoul of the single-unit registration requirements; the inquiry is merely whether Unicolors knew that certain designs included in the registration were confined and, therefore, were each published separately to exclusive customers.\" 959 F. 3d, at 1200. In context, we understand this statement to hold that Unicolors’ \"knowledge\" of the facts that produced the inaccuracy was sufficient to demonstrate its knowledge of the inaccuracy itself under §411(b)(1)(A). Unicolors’ knowledge of the relevant law was irrelevant. The Ninth Circuit therefore explicitly addressed the question we here decide. For these reasons, the judgment of the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "19-1401", "syllabus": "Respondents administer retirement plans on behalf of current and former Northwestern University employees, including petitioners here. The plans are defined-contribution plans governed by the Employee Retirement Income Security Act of 1974 (ERISA), under which each participant chooses an individual investment mix from a menu of options selected by the plan administrators. Petitioners sued respondents claiming that respondents violated ERISA’s duty of prudence required of all plan fiduciaries by: (1) failing to monitor and control recordkeeping fees, resulting in unreasonably high costs to plan participants; (2) offering mutual funds and annuities in the form of \"retail\" share classes that carried higher fees than those charged by otherwise identical share classes of the same investments; and (3) offering options that were likely to confuse investors. The District Court granted respondents’ motion to dismiss, and the Seventh Circuit affirmed, concluding that petitioners’ allegations fail as a matter of law. Held: The Seventh Circuit erred in relying on the participants’ ultimate choice over their investments to excuse allegedly imprudent decisions by respondents. Determining whether petitioners state plausible claims against plan fiduciaries for violations of ERISA’s duty of prudence requires a context-specific inquiry of the fiduciaries’ continuing duty to monitor investments and to remove imprudent ones as articulated in Tibble v. Edison Int’l, 575 U. S. 523. Tibble concerned allegations that plan fiduciaries had offered \"higher priced retail-class mutual funds as Plan investments when materially identical lower priced institutional-class mutual funds were available.\" Id., at 525–526. The Tibble Court concluded that the plaintiffs had identified a potential violation with respect to certain funds because \"a fiduciary is required to conduct a regular review of its investment.\" Id., at 528. Tibble’s discussion of the continuing duty to monitor plan investments applies here. Petitioners allege that respondents’ failure to monitor investments prudently—by retaining recordkeepers that charged excessive fees, offering options likely to confuse investors, and neglecting to provide cheaper and otherwise-identical alternative investments—resulted in respondents failing to remove imprudent investments from the menu of investment offerings. In rejecting petitioners’ allegations, the Seventh Circuit did not apply Tibble’s guidance but instead erroneously focused on another component of the duty of prudence: a fiduciary’s obligation to assemble a diverse menu of options. But respondents’ provision of an adequate array of investment choices, including the lower cost investments plaintiffs wanted, does not excuse their allegedly imprudent decisions. Even in a defined-contribution plan where participants choose their investments, Tibble instructs that plan fiduciaries must conduct their own independent evaluation to determine which investments may be prudently included in the plan’s menu of options. See id., at 529–530. If the fiduciaries fail to remove an imprudent investment from the plan within a reasonable time, they breach their duty. The Seventh Circuit’s exclusive focus on investor choice elided this aspect of the duty of prudence. The court maintained the same mistaken focus in rejecting petitioners’ claims with respect to recordkeeping fees on the grounds that plan participants could have chosen investment options with lower expenses. The Court vacates the judgment below so that the Seventh Circuit may reevaluate the allegations as a whole, considering whether petitioners have plausibly alleged a violation of the duty of prudence as articulated in Tibble under applicable pleading standards. The content of the duty of prudence turns on \"the circumstances . . . prevailing\" at the time the fiduciary acts, 29 U. S. C. §1104(a)(1)(B), so the appropriate inquiry will be context specific. Fifth Third Bancorp v. Dudenhoeffer, 573 U. S. 409, 425. Pp. 4–6. 953 F. 3d 980, vacated and remanded.", "opinion": "Under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq., ERISA plan fiduciaries must discharge their duties \"with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.\" §1104(a)(1)(B). This fiduciary duty of prudence governs the conduct of respondents, who administer several retirement plans on behalf of current and former employees of Northwestern University, including petitioners. In this case, petitioners claim that respondents violated their duty of prudence by, among other things, offering needlessly expensive investment options and paying excessive recordkeeping fees. The Court of Appeals for the Seventh Circuit held that petitioners’ allegations fail as a matter of law, in part based on the court’s determination that petitioners’ preferred type of low-cost investments were available as plan options. In the court’s view, this eliminated any concerns that other plan options were imprudent. That reasoning was flawed. Such a categorical rule is inconsistent with the context-specific inquiry that ERISA requires and fails to take into account respondents’ duty to monitor all plan investments and remove any imprudent ones. See Tibble v. Edison Int’l, 575 U. S. 523, 530 (2015). Accordingly, we vacate the judgment below and remand the case for reconsideration of petitioners’ allegations. I This case comes to the Court on review of respondents’ motion to dismiss the operative amended complaint. Accepting the allegations in that complaint as true, see Rotkiske v. Klemm, 589 U. S. ___, ___, n. 1 (2019) (slip op., at 2, n. 1), the relevant facts are as follows. Northwestern University offers two retirement plans to eligible employees: the Northwestern University Retirement Plan (Retirement Plan) and the Northwestern University Voluntary Savings Plan (Savings Plan). Both Plans are defined-contribution plans. In such plans, participating employees maintain individual investment accounts, which are funded by pretax contributions from the employees’ salaries and, where applicable, matching contributions from the employer. Each participant chooses how to invest her funds, subject to an important limitation: She may choose only from the menu of options selected by the plan administrators, i.e., respondents. The performance of her chosen investments, as well as the deduction of any associated fees, determines the amount of money the participant will have saved for retirement. Two types of fees are relevant in this case. First, the investment options typically offered in retirement plans, such as mutual funds and index funds, often charge a fee for investment management services. Such fees compensate a fund for designing and maintaining the fund’s investment portfolio. These fees are usually calculated as a percentage of the assets the plan participant chooses to invest in the fund, which is known as the expense ratio. Expense ratios tend to be higher for funds that are actively managed according to the funds’ investment strategies, and lower for funds that passively track the makeup of a standardized index, such as the S&P 500. In addition to investment management fees, retirement plans also pay fees for recordkeeping services. Recordkeepers help plans track the balances of individual accounts, provide regular account statements, and offer informational and accessibility services to participants. Like investment management fees, recordkeeping fees may be calculated as a percentage of the assets for which the recordkeeper is responsible; alternatively, these fees may be charged at a flat rate per participant account. Petitioners are three current or former employees of Northwestern University. Each participates in both the Retirement and Savings Plans. In 2016, they sued: Northwestern University; its Retirement Investment Committee, which exercises discretionary authority to control and manage the Plans; and the individual officials who administer the Plans (collectively, respondents). Petitioners allege that respondents violated their statutory duty of prudence in a number of ways, three of which are at issue here. First, respondents allegedly failed to monitor and control the fees they paid for recordkeeping, resulting in unreasonably high costs to plan participants. Second, respondents allegedly offered a number of mutual funds and annuities in the form of \"retail\" share classes that carried higher fees than those charged by otherwise identical \"institutional\" share classes of the same investments, which are available to certain large investors. App. 83–84, 171. Finally, respondents allegedly offered too many investment options—over 400 in total for much of the relevant period—and thereby caused participant confusion and poor investment decisions. In 2017, respondents moved to dismiss the amended complaint. The District Court granted the motion and denied leave to amend. Divane v. Northwestern Univ., No. 16–C– 8157, 2018 WL 2388118, *14 (ND Ill., May 25, 2018). The Seventh Circuit affirmed. Divane v. Northwestern Univ., 953 F. 3d 980, 983 (2020). This Court granted certiorari. 594 U. S. ___ (2021).* II In Tibble, this Court interpreted ERISA’s duty of prudence in light of the common law of trusts and determined that \"a fiduciary normally has a continuing duty of some kind to monitor investments and remove imprudent ones.\" 575 U. S., at 530. Like petitioners, the plaintiffs in Tibble alleged that their plan fiduciaries had offered \"higher priced retail-class mutual funds as Plan investments when materially identical lower priced institutional-class mutual funds were available.\" Id., at 525–526. Three of the higher priced investments, however, had been added to the plan outside of the 6-year statute of limitations. Id., at 526. This Court addressed whether the plaintiffs nevertheless had identified a potential violation with respect to these funds. The Court concluded that they had because \"a fiduciary is required to conduct a regular review of its investment.\" Id., at 528. Thus, \"[a] plaintiff may allege that a fiduciary breached the duty of prudence by failing to properly monitor investments and remove imprudent ones.\" Id., at 530. This Court then remanded the case for the court below to consider whether the plaintiffs had plausibly alleged such a violation. Id., at 531. Tibble’s discussion of the duty to monitor plan investments applies here. Petitioners allege that respondents failed to monitor the Plans’ investments in a number of ways, including by retaining recordkeepers that charged excessive fees, offering options likely to confuse investors, and neglecting to provide cheaper and otherwise-identical alternative investments. As a result, respondents allegedly failed to remove imprudent investments from the Plans’ offerings. These allegations must be considered in light of the principles set forth in Tibble to determine whether petitioners have stated a plausible claim for relief. In rejecting petitioners’ allegations, the Seventh Circuit did not apply Tibble’s guidance. Instead, the Seventh Circuit focused on another component of the duty of prudence: a fiduciary’s obligation to assemble a diverse menu of options. The court determined that respondents had provided an adequate array of choices, including \"the types of funds plaintiffs wanted (low-cost index funds).\" 953 F. 3d, at 991. In the court’s view, these offerings \"eliminat[ed] any claim that plan participants were forced to stomach an unappetizing menu.\" Ibid. The Seventh Circuit erred in relying on the participants’ ultimate choice over their investments to excuse allegedly imprudent decisions by respondents. In Tibble, this Court explained that, even in a defined-contribution plan where participants choose their investments, plan fiduciaries are required to conduct their own independent evaluation to determine which investments may be prudently included in the plan’s menu of options. See 575 U. S., at 529–530. If the fiduciaries fail to remove an imprudent investment from the plan within a reasonable time, they breach their duty. See ibid. The Seventh Circuit’s exclusive focus on investor choice elided this aspect of the duty of prudence. For instance, the court rejected petitioners’ allegations that respondents offered \"investment options that were too numerous, too expensive, or underperforming\" on the same ground: that petitioners \"failed to allege . . . that Northwestern did not make their preferred offerings available to them,\" and simply \"object[ed] that numerous additional funds were offered as well.\" 953 F. 3d, at 991. In the court’s view, because petitioners’ preferred type of investments were available, they could not complain about the flaws in other options. See ibid. The same was true for recordkeeping fees: The court noted that \"plan participants had options to keep the expense ratios (and, therefore, recordkeeping expenses) low.\" Id., at 991, n. 10. Thus, \"[t]he amount of fees paid were within the participants’ control.\" Ibid. Given the Seventh Circuit’s repeated reliance on this reasoning, we vacate the judgment below so that the court may reevaluate the allegations as a whole. On remand, the Seventh Circuit should consider whether petitioners have plausibly alleged a violation of the duty of prudence as articulated in Tibble, applying the pleading standard discussed in Ashcroft v. Iqbal, 556 U. S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007). \"Because the content of the duty of prudence turns on ‘the circumstances . . . prevailing’ at the time the fiduciary acts, §1104(a)(1)(B), the appropriate inquiry will necessarily be context specific.\" Fifth Third Bancorp v. Dudenhoeffer, 573 U. S. 409, 425 (2014). At times, the circumstances facing an ERISA fiduciary will implicate difficult tradeoffs, and courts must give due regard to the range of reasonable judgments a fiduciary may make based on her experience and expertise. The judgment of the Seventh Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "20-480", "syllabus": "This case concerns retirement benefits due under the Social Security Act for a retired \"military technician (dual status),\" 10 U. S. C. §10216, a civilian position formerly held by David Babcock. Like all dual-status technicians, Babcock was required to maintain membership in the National Guard. For his full-time job as a technician, which included work as a test pilot and pilot instructor, Babcock received civil-service pay and Civil Service Retirement System pension payments from the Office of Personnel Management. For his separate National Guard service, which included part-time drills, training exercises, and one active-duty deployment, Babcock received military pay and military pension payments from a different arm of the Federal Government, the Defense Finance and Accounting Service. Upon retirement, Babcock applied to the Social Security Administration for benefits. The agency granted Babcock benefits but applied a statutory \"windfall elimination provision\" and reduced the amount of benefits to reflect Babcock’s receipt of civil-service pension payments for his work as a technician. Babcock sought reconsideration, arguing that the reduction should not apply because the pension payments at issue fell within a statutory exception for payments \"based wholly on service as a member of a uniformed service.\" The agency denied reconsideration, and Babcock exhausted available avenues of agency review before filing suit in federal court. The District Court upheld the agency’s decision, and the Sixth Circuit affirmed. Held: Civil-service pension payments based on employment as a dualstatus military technician are not payments based on \"service as a member of a uniformed service\" under 42 U. S. C. §415(a)(7)(A)(III). Retirees receive Social Security benefits based on a progressive formula that awards a percentage of average past earnings. §415(a)(1)(A). The formula originally did not account for earnings from jobs exempt from Social Security taxes, many of which provide separate pensions. In response to this potential windfall, Congress modified the formula to reduce benefits when a retiree receives such a separate pension payment. But Congress left benefits unchanged if the pension payment was \"based wholly on service as a member of a uniformed service.\" §415(a)(7)(A)(III). The National Guard of the United States is defined as a uniformed service, §410(m), so whether the uniformed-services exception applies depends on whether Babcock’s technician work was service \"as\" a member of the National Guard. It was not. In context, \"as\" is most naturally read to mean \"[i]n the role, capacity, or function of.\" American Heritage Dictionary 106. And the statute defines the role, capacity, or function in which a technician serves as that of a civilian: \"For purposes of this section and any other provision of law,\" a technician \"is\" a \"civilian employee,\" \"assigned to a civilian position\" and \"authorized and accounted for as\" a \"civilian.\" 10 U. S. C. §§10216(a)(1), (a)(1)(C), (a)(2). Technicians hired before 1984 like Babcock are members of the \"civil service\" entitled to pensions under Title 5 of the U. S. Code, which governs the pay and benefits of civil servants. See 5 U. S. C. §2101. Looking to the broader statutory context, technicians possess characteristically civilian rights to seek redress for employment discrimination and to receive workers’ compensation, disability benefits, and compensatory time off for overtime work. These provisions demonstrate that Congress consistently distinguished technician employment from National Guard service. That distinction holds true even though Babcock also served at other times in a different capacity as a member of the National Guard. His civil-service pension payments are not based on that service, for which he received separate military pension payments that do not trigger the windfall elimination provision. And a condition of employment, such as the requirement that a technician maintain Guard membership, is not the same as the capacity in which one serves. Babcock contends that the technician job’s qualifications, duties, and dress code render it functionally indistinguishable from National Guard service, and that the Court should interpret \"as\" more loosely to capture payments for \"service [in the likeness of or the same as] a member of a uniformed service.\" But the Court finds no reason to adopt a meaning of \"as\" other than the most natural one, particularly when Babcock’s functional test is inconsistent with the statutory scheme. Determining whether Babcock’s employment was service \"as\" a member of the National Guard does not turn on factors like whether he wore his uniform to work but rather on how Congress classified the position. Congress’ civilian classification of dual-status technicians for \"bookkeeping\" purposes controls when it comes to pay and benefits. Pp. 4–7. 959 F. 3d 210, affirmed.", "opinion": "The Social Security Act generally reduces the benefits of retirees who receive payments from separate pensions based on employment not subject to Social Security taxes. The reduction is not triggered, though, by payments \"based wholly on service as a member of a uniformed service.\" We must decide whether this exception applies to civil-service pension payments based on employment as a \"dual-status military technician\"—a federal civilian employee who provides technical or administrative assistance to the National Guard. We hold that it does not. I A Retirees receive Social Security benefits according to a statutory formula based on average past earnings. 42 U. S. C. §415(a)(1)(A). The formula is progressive in that it awards lower earners a higher percentage of their earnings. (Think of it like an income tax that lets you keep more of your 1st dollar earned than your 10,000th.) But the formula originally did not count earnings from jobs exempt from Social Security taxes, so it calculated artificially low earnings for retirees who spent part of their careers in those jobs. As a result, those retirees received an artificially high percentage of their calculated earnings in Social Security benefits—plus, in many cases, payments from separate pensions to boot. Congress responded to this \"windfall\" by modifying the formula to reduce benefits when a retiree receives such a separate pension payment. Social Security Amendments of 1983, §113(a), 97 Stat. 76–78, 42 U. S. C. §§415(a)(7)(A)– (B). But it exempted several categories of pension payments, including \"a payment based wholly on service as a member of a uniformed service.\" Social Security Independence and Program Improvements Act of 1994, §308(b), 108 Stat. 1522–1523, 42 U. S. C. §415(a)(7)(A)(III). The upshot is that pensions based on uniformed service do not trigger a reduction in Social Security benefits. This case concerns the application of the windfall elimination provision to a unique position in federal employment: the \"military technician (dual status).\" 10 U. S. C. §10216. As its name suggests, this rare bird has characteristics of two different statuses. On one hand, the dual-status technician is a \"civilian employee\" engaged in \"organizing, administering, instructing,\" \"training,\" or \"maintenance and repair of supplies\" to assist the National Guard. §10216(a)(1)(C); 32 U. S. C. §§709(a)(1)–(2). On the other, the technician \"is required as a condition of that employment to maintain membership in the [National Guard]\" and must wear a uniform while working. 10 U. S. C. §10216(a)(1)(B); 32 U. S. C. §§709(b)(2)–(4). This dual role means that technicians perform work in two separate capacities that yield different forms of compensation. First, they work full time as technicians in a civilian capacity. For this work, they receive civil-service pay and, if hired before 1984, Civil Service Retirement System pension payments from the Office of Personnel Management. See 5 U. S. C. §§2101, 8332(b)(6); 42 U. S. C. §410(a)(6)(A) (1970 ed.); 26 U. S. C. §3121(b)(6)(A) (1970 ed.).1 Second, they participate as National Guard members in part-time drills, training, and (sometimes) active-duty deployment. See 32 U. S. C. §§502(a), 709(g)(2). For this work, they receive military pay and pension payments from a different arm of the Federal Government, the Defense Finance and Accounting Service. See 37 U. S. C. §§204, 206; 10 U. S. C. §113. B David Babcock worked as a dual-status technician from 1975 to 2009. In his technician capacity, he worked full time as a test pilot and pilot instructor supporting the Michigan Army National Guard. Like all dual-status technicians, Babcock also served in the National Guard himself. In that capacity, he participated in part-time training and weekend drills, and he deployed to Iraq on active duty for about a year. From 2009 to 2014, he worked for a private employer flying helicopters. After retiring, Babcock applied to the Social Security Administration for benefits. The agency granted his application but determined that his civil-service pension payments, which he received for his work as a civilian technician, triggered the windfall elimination provision. So the agency applied the modified formula to reduce his Social Security benefits by about $100 per month. Babcock sought reconsideration, arguing that his pension payments fell within the uniformed-services exception and so should not trigger this reduction in benefits. The agency denied reconsideration, and an Administrative Law Judge and the agency’s Appeals Council upheld the decision. Babcock then sued in federal court. The District Court upheld the agency’s decision. The Sixth Circuit affirmed, concluding that Babcock’s civil-service pension payments were based on service in a civilian capacity and therefore did not fall within the uniformed-services exception. Babcock v. Commissioner of Social Security, 959 F. 3d 210 (2020). While most circuits to address the question have reached the same result, one has come out the other way.2 We granted certiorari to resolve the split. 592 U. S. ___ (2021). II Babcock argues that the agency and courts below erred in reducing his Social Security benefits based on his pension for technician employment. The dispute is narrow: All agree that Babcock’s separate military pension for his National Guard service does not trigger the windfall elimination provision. And all agree that Civil Service Retirement System pensions generally do trigger that provision. The only question is whether Babcock’s civil-service pension for technician work avoids triggering the provision’s reduction in benefits because it falls within the exception for \"a payment based wholly on service as a member of a uniformed service.\" 42 U. S. C. §415(a)(7)(A)(III). The answer depends on whether Babcock’s technician work was service \"as\" a member of the National Guard. See §410(m) (defining \"member of a uniformed service\" to include a member of a \"reserve component\" as defined in 38 U. S. C. §101(27), which includes the Army National Guard of the United States). It was not. In context, \"as\" is most naturally read to mean \"[i]n the role, capacity, or function of.\" American Heritage Dictionary 106 (3d ed. 1992); see also 1 Oxford English Dictionary 674 (2d ed. 1989) (\"[i]n the character, capacity, or rôle of \"). And the role, capacity, or function in which a technician serves is that of a civilian, not a member of the National Guard. The statute defining the technician job makes that point broadly and repeatedly: \"For purposes of this section and any other provision of law,\" a technician \"is\" a \"civilian employee,\" \"assigned to a civilian position\" and \"authorized and accounted for as\" a \"civilian.\" 10 U. S. C. §§10216(a)(1), (a)(1)(C), (a)(2). This statute’s plain meaning \"becomes even more apparent when viewed in\" the broader statutory context. FCC v. AT&T Inc., 562 U. S. 397, 407 (2011). While working in a civilian capacity, technicians are not subject to the Uniform Code of Military Justice. See 10 U. S. C. §§802(a)(3)(A)(ii), 12403, 12405. They possess characteristically civilian rights to seek redress for employment discrimination and to earn workers’ compensation, disability benefits, and compensatory time off for overtime work. See 32 U. S. C. §709(f )(5); 42 U. S. C. §2000e–16; 5 U. S. C. §§8101 et seq., 8337(h), 8451; 32 U. S. C. §709(h). And, as particularly significant in the context of retirement benefits, technicians hired before 1984 are members of the \"civil service\" entitled to pensions under Title 5 of the U. S. Code, which governs the pay and benefits of civil servants. See 5 U. S. C. §2101. These provisions demonstrate that Congress consistently distinguished technician employment from National Guard service. That distinction holds true even though Babcock also served at other times in a different capacity as a member of the National Guard. His civil-service pension payments are not based on that service, for which he received separate military pension payments that do not trigger the windfall elimination provision. Nor are we moved by Babcock’s argument that the statutory requirement for technicians to maintain National Guard membership makes all of the work that they do count as Guard service. A condition of employment is not the same as the capacity in which one serves. If a private employer hired only moonlighting police officers to be security guards, one would not call that employment \"service as a police officer.\" So too here: the fact that the Government hires only National Guardsmen to be technicians does not erase the distinction between the two jobs. Babcock protests that the distinction is not meaningful. He argues that the word \"as\" may sometimes bear the looser meaning \"in the likeness of \" or \"the same as,\" rather than \"in the capacity of.\" Reply Brief 4–5. With this looser meaning of \"as,\" the uniformed-services exception would apply to \"a payment based wholly on service [in the likeness of or the same as] a member of a uniformed service.\" The technician job satisfies this functional test, Babcock says, because whatever its classification, the job’s qualifications, duties, and dress code render it indistinguishable from National Guard service. According to Babcock, Congress’ choice to designate the technician’s work as \"civilian\" is irrelevant to the uniformed-services exception. Brief for Petitioner 3. We are unpersuaded. To begin with, the only reason Babcock advances for choosing his functional interpretation of \"as\" is that Congress used the word \"capacity\" (or the arguably analogous \"status\") in other provisions and did not do so in the uniformed-services exception. See, e.g., 32 U. S. C. §101(19) (\"status as a member\"); 10 U. S. C. §723(a) (\"employ[ment] in\" a \"capacity\"). But these scattered provisions do not create the kind of \"stark contrast\" that might counsel adoption of a meaning other than the most natural one. Cf. Astrue v. Ratliff, 560 U. S. 586, 595 (2010). At most, they illustrate that Congress has employed several variations on the same theme to distinguish between service in different capacities. More importantly, though, Babcock’s functional test is inconsistent with the choices that Congress made in the statutory scheme. Determining whether Babcock’s technician employment was service \"as\" a member of the National Guard does not turn on factors like whether he wore his uniform to work. It turns on how Congress classified the job—and as already discussed, Congress classified dual-status technicians as \"civilian.\" Babcock dismisses that distinction as one drawn for purposes of \"administrative bookkeeping,\" but bookkeeping matters when it comes to pay and benefits. Babcock’s civil-service pension payments fall outside the Social Security Act’s uniformed-services exception because they are based on service in his civilian capacity. We therefore affirm the judgment of the Court of Appeals."},
{"docket_number": "19-357", "syllabus": "The filing of a petition under the Bankruptcy Code automatically \"creates an estate\" that, with some exceptions, comprises \"all legal or equitable interests of the debtor in property as of the commencement of the case.\" 11 U. S. C. §541(a). Section 541 is intended to include within the estate any property made available by other provisions of the Bankruptcy Code. Section 542 is one such provision, as it provides that an entity in possession of property of the bankruptcy estate \"shall deliver to the trustee, and account for\" that property. The filing of a petition also automatically \"operates as a stay, applicable to all entities,\" of efforts to collect prepetition debts outside the bankruptcy forum, §362(a), including \"any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate,\" §362(a)(3). Here, each respondent filed a bankruptcy petition and requested that the city of Chicago (City) return his or her vehicle, which had been impounded for failure to pay fines for motor vehicle infractions. In each case, the City’s refusal was held by a bankruptcy court to violate the automatic stay. The Seventh Circuit affirmed, concluding that by retaining possession of the vehicles the City had acted \"to exercise control over\" respondents’ property in violation of §362(a)(3). Held: The mere retention of estate property after the filing of a bankruptcy petition does not violate §362(a)(3) of the Bankruptcy Code. Under that provision, the filing of a bankruptcy petition operates as a \"stay\" of \"any act\" to \"exercise control\" over the property of the estate. Taken together, the most natural reading of these terms is that §362(a)(3) prohibits affirmative acts that would disturb the status quo of estate property as of the time when the bankruptcy petition was filed. Respondents’ alternative reading would create at least two serious problems. First, reading §362(a)(3) to cover mere retention of property would render §542’s central command—that an entity in possession of certain estate property \"shall deliver to the trustee . . . such property\"—largely superfluous, even though §542 appears to be the provision governing the turnover of estate property. Second, respondents’ reading would render the commands of §362(a)(3) and §542 contradictory. Section 542 carves out exceptions to the turnover command. Under respondents’ reading, an entity would be required to turn over property under §362(a)(3) even if that property were exempt from turnover under §542. The history of the Bankruptcy Code confirms the better reading. The Code originally included both §362(a)(3) and §542(a), but the former provision lacked the phrase \"or to exercise control over property of the estate.\" When that phrase was later added by amendment, Congress made no mention of transforming §362(a)(3) into an affirmative turnover obligation. It is unlikely that Congress would have made such an important change simply by adding the phrase \"exercise control,\" rather than by adding a cross-reference to §542(a) or some other indication that it was so transforming §362(a)(3). Pp. 3–7. 926 F. 3d 916, vacated and remanded.", "opinion": "When a debtor files a petition for bankruptcy, the Bankruptcy Code protects the debtor’s interests by imposing an automatic stay on efforts to collect prepetition debts outside the bankruptcy forum. Ritzen Group, Inc. v. Jackson Masonry, LLC, 589 U. S. ___, ___–___ (2020) (slip op., at 6–7). Those prohibited efforts include \"any act . . . to exercise control over property\" of the bankruptcy estate. 11 U. S. C. §362(a)(3). The question in this case is whether an entity violates that prohibition by retaining possession of a debtor’s property after a bankruptcy petition is filed. We hold that mere retention of property does not violate §362(a)(3). I Under the Bankruptcy Code, the filing of a bankruptcy petition has certain immediate consequences. For one thing, a petition \"creates an estate\" that, with some exceptions, comprises \"all legal or equitable interests of the debtor in property as of the commencement of the case.\" §541(a)(1). Section 541 \"is intended to include in the estate any property made available to the estate by other provisions of the Bankruptcy Code.\" United States v. Whiting Pools, Inc., 462 U. S. 198, 205 (1983). One such provision, §542, is important for present purposes. Titled \"Turnover of property to the estate,\" §542 provides, with just a few exceptions, that an entity (other than a custodian) in possession of property of the bankruptcy estate \"shall deliver to the trustee, and account for\" that property. A second automatic consequence of the filing of a bankruptcy petition is that, with certain exceptions, the petition \"operates as a stay, applicable to all entities,\" of efforts to collect from the debtor outside of the bankruptcy forum. §362(a). The automatic stay serves the debtor’s interests by protecting the estate from dismemberment, and it also benefits creditors as a group by preventing individual creditors from pursuing their own interests to the detriment of the others. Under the Code, an individual injured by any willful violation of the stay \"shall recover actual damages, including costs and attorneys’ fees, and in appropriate circumstances, may recover punitive damages.\" §362(k)(1). Among the many collection efforts prohibited by the stay is \"any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.\" §362(a)(3) (emphasis added). The prohibition against exercising control over estate property is the subject of the present dispute. In the case before us, the city of Chicago (City) impounded each respondent’s vehicle for failure to pay fines for motor vehicle infractions. Each respondent filed a Chapter 13 bankruptcy petition and requested that the City return his or her vehicle. The City refused, and in each case a bankruptcy court held that the City’s refusal violated the automatic stay. The Court of Appeals affirmed all of the judgments in a consolidated opinion. In re Fulton, 926 F. 3d 916 (CA7 2019). The court concluded that \"by retaining possession of the debtors’ vehicles after they declared bankruptcy,\" the City had acted \"to exercise control over\" respondents’ property in violation of §362(a)(3). Id., at 924– 925. We granted certiorari to resolve a split in the Courts of Appeals over whether an entity that retains possession of the property of a bankruptcy estate violates §362(a)(3).1 589 U. S. ___ (2019). We now vacate the judgment below. II The language used in §362(a)(3) suggests that merely retaining possession of estate property does not violate the automatic stay. Under that provision, the filing of a bankruptcy petition operates as a \"stay\" of \"any act\" to \"exercise control\" over the property of the estate. Taken together, the most natural reading of these terms—\"stay,\" \"act,\" and \"exercise control\"—is that §362(a)(3) prohibits affirmative acts that would disturb the status quo of estate property as of the time when the bankruptcy petition was filed. Taking the provision’s operative words in turn, the term \"stay\" is commonly used to describe an order that \"suspend[s] judicial alteration of the status quo.\" Nken v. Holder, 556 U. S. 418, 429 (2009) (brackets in original; internal quotation marks omitted). An \"act\" is \"[s]omething done or performed . . . ; a deed.\" Black’s Law Dictionary 30 (11th ed. 2019); see also Webster’s New International Dictionary 25 (2d ed. 1934) (\"that which is done,\" \"the exercise of power,\" \"a deed\"). To \"exercise\" in the sense relevant here means \"to bring into play\" or \"make effective in action.\" Webster’s Third New International Dictionary 795 (1993). And to \"exercise\" something like control is \"to put in practice or carry out in action.\" Webster’s New International Dictionary, at 892. The suggestion conveyed by the combination of these terms is that §362(a)(3) halts any affirmative act that would alter the status quo as of the time of the filing of a bankruptcy petition. We do not maintain that these terms definitively rule out the alternative interpretation adopted by the court below and advocated by respondents. As respondents point out, omissions can qualify as \"acts\" in certain contexts, and the term \"‘control’\" can mean \"‘to have power over.’\" Thompson v. General Motors Acceptance Corp., 566 F. 3d 699, 702 (CA7 2009) (quoting Merriam-Webster’s Collegiate Dictionary 272 (11th ed. 2003)). But saying that a person engages in an \"act\" to \"exercise\" his or her power over a thing communicates more than merely \"having\" that power. Thus the language of §362(a)(3) implies that something more than merely retaining power is required to violate the disputed provision. Any ambiguity in the text of §362(a)(3) is resolved decidedly in the City’s favor by the existence of a separate provision, §542, that expressly governs the turnover of estate property. Section 542(a), with two exceptions, provides as follows: \"[A]n entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.\" The exceptions to §542(a) shield (1) transfers of estate property made from one entity to another in good faith without notice or knowledge of the bankruptcy petition and (2) goodfaith transfers to satisfy certain life insurance obligations. See §§542(c), (d). Reading §362(a)(3) to cover mere retention of property, as respondents advocate, would create at least two serious problems. First, it would render the central command of §542 largely superfluous. \"The canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.\" Yates v. United States, 574 U. S. 528, 543 (2015) (plurality opinion; internal quotation marks and brackets omitted). Reading \"any act . . . to exercise control\" in §362(a)(3) to include merely retaining possession of a debtor’s property would make that section a blanket turnover provision. But as noted, §542 expressly governs \"[t]urnover of property to the estate,\" and subsection (a) describes the broad range of property that an entity \"shall deliver to the trustee.\" That mandate would be surplusage if §362(a)(3) already required an entity affirmatively to relinquish control of the debtor’s property at the moment a bankruptcy petition is filed. Respondents and their amici contend that §542(a) would still perform some work by specifying the party to whom the property in question must be turned over and by requiring that an entity \"account for . . . the value of \" the debtor’s property if the property is damaged or lost. But that is a small amount of work for a large amount of text in a section that appears to be the Code provision that is designed to govern the turnover of estate property. Under this alternative interpretation, §362(a)(3), not §542, would be the chief provision governing turnover—even though §362(a)(3) says nothing expressly on that question. And §542 would be reduced to a footnote—even though it appears on its face to be the governing provision. The better account of the two provisions is that §362(a)(3) prohibits collection efforts outside the bankruptcy proceeding that would change the status quo, while §542(a) works within the bankruptcy process to draw far-flung estate property back into the hands of the debtor or trustee. Second, respondents’ reading would render the commands of §362(a)(3) and §542 contradictory. Section 542 carves out exceptions to the turnover command, and §542(a) by its terms does not mandate turnover of property that is \"of inconsequential value or benefit to the estate.\" Under respondents’ reading, in cases where those exceptions to turnover under §542 would apply, §362(a)(3) would command turnover all the same. But it would be \"an odd construction\" of §362(a)(3) to require a creditor to do immediately what §542 specifically excuses. Citizens Bank of Md. v. Strumpf, 516 U. S. 16, 20 (1995). Respondents would have us resolve the conflicting commands by engrafting §542’s exceptions onto §362(a)(3), but there is no textual basis for doing so. The history of the Bankruptcy Code confirms what its text and structure convey. Both §362(a)(3) and §542(a) were included in the original Bankruptcy Code in 1978. See Bankruptcy Reform Act of 1978, 92 Stat. 2570, 2595. At the time, §362(a)(3) applied the stay only to \"any act to obtain possession of property of the estate or of property from the estate.\" Id., at 2570. The phrase \"or to exercise control over property of the estate\" was not added until 1984. Bankruptcy Amendments and Federal Judgeship Act of 1984, 98 Stat. 371. Respondents do not seriously dispute that §362(a)(3) imposed no turnover obligation prior to the 1984 amendment. But transforming the stay in §362 into an affirmative turnover obligation would have constituted an important change. And it would have been odd for Congress to accomplish that change by simply adding the phrase \"exercise control,\" a phrase that does not naturally comprehend the mere retention of property and that does not admit of the exceptions set out in §542. Had Congress wanted to make §362(a)(3) an enforcement arm of sorts for §542(a), the least one would expect would be a cross-reference to the latter provision, but Congress did not include such a cross-reference or provide any other indication that it was transforming §362(a)(3). The better account of the statutory history is that the 1984 amendment, by adding the phrase regarding the exercise of control, simply extended the stay to acts that would change the status quo with respect to intangible property and acts that would change the status quo with respect to tangible property without \"obtain[ing]\" such property. Though the parties debate the issue at some length, we need not decide how the turnover obligation in §542 operates. Nor do we settle the meaning of other subsections of §362(a).2 We hold only that mere retention of estate property after the filing of a bankruptcy petition does not violate §362(a)(3) of the Bankruptcy Code. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "18-540", "syllabus": "Pharmacy benefit managers (PBMs) act as intermediaries between pharmacies and prescription-drug plans. In that role, they reimburse pharmacies for the cost of drugs covered by prescription-drug plans. To determine the reimbursement rate for each drug, PBMs develop and administer maximum allowable cost (MAC) lists. In 2015, Arkansas passed Act 900, which effectively requires PBMs to reimburse Arkansas pharmacies at a price equal to or higher than the pharmacy’s wholesale cost. To accomplish this result, Act 900 requires PBMs to timely update their MAC lists when drug wholesale prices increase, Ark. Code Ann. §17–92–507(c)(2), and to provide pharmacies an administrative appeal procedure to challenge MAC reimbursement rates, §17–92–507(c)(4)(A)(i)(b). Act 900 also permits Arkansas pharmacies to refuse to sell a drug if the reimbursement rate is lower than its acquisition cost. §17–92–507(e). Respondent Pharmaceutical Care Management Association (PCMA), which represents the 11 largest PBMs in the country, sued, alleging, as relevant here, that Act 900 is preempted by the Employee Retirement Income Security Act of 1974 (ERISA). Following Circuit precedent in a case involving a similar Iowa statute, the District Court held that ERISA pre-empts Act 900. The Eighth Circuit affirmed. Held: Arkansas’ Act 900 is not pre-empted by ERISA. Pp. 4–10. (a) ERISA pre-empts state laws that \"relate to\" a covered employee benefit plan. 29 U. S. C. §1144(a). \"[A] state law relates to an ERISA plan if it has a connection with or reference to such a plan.\" Egelhoff v. Egelhoff, 532 U. S. 141, 147. Act 900 has neither of those impermissible relationships. Pp. 4–7. (1) Act 900 does not have an impermissible connection with an ERISA plan. To determine whether such a connection exists, this Court asks whether the state law \"governs a central matter of plan administration or interferes with nationally uniform plan administration.\" Gobeille v. Liberty Mut. Ins. Co., 577 U. S. 312, 320. State rate regulations that merely increase costs or alter incentives for ERISA plans without forcing plans to adopt any particular scheme of substantive coverage are not pre-empted by ERISA. See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 668. Like the law at issue in Travelers, Act 900 is merely a form of cost regulation that does not dictate plan choices. Pp. 4–6. (2) Act 900 also does not \"refer to\" ERISA. It does not \" ‘ac[t] immediately and exclusively upon ERISA plans,’ \" and \" ‘the existence of ERISA plans is [not] essential to the law’s operation.’ \" Gobeille, 577 U. S., at 319–320. Act 900 affects plans only insofar as PBMs may pass along higher pharmacy rates to plans with which they contract, and Act 900 regulates PBMs whether or not the plans they service fall within ERISA’s coverage. ERISA plans are therefore also not essential to Act 900’s operation. Pp. 6–7. (b) PCMA’s contention that Act 900 has an impermissible connection with an ERISA plan because its enforcement mechanisms both directly affect central matters of plan administration and interfere with nationally uniform plan administration is unconvincing. First, its claim that Act 900 affects plan design by mandating a particular pricing methodology for pharmacy benefits is simply a long way of saying that Act 900 regulates reimbursement rates. Second, Act 900’s appeal procedure does not govern central matters of plan administration simply because it requires administrators to comply with a particular process and may require a plan to reprocess how much it owes a PBM. Taken to its logical endpoint, PCMA’s argument would pre-empt any suits under state law that could affect the price or provision of benefits, but this Court has held that ERISA does not pre-empt \"state-law mechanisms of executing judgments against\" ERISA plans, Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 831. Third, allowing pharmacies to decline to dispense a prescription if the PBM’s reimbursement will be less than the pharmacy’s cost of acquisition does not interfere with central matters of plan administration. The responsibility for offering the pharmacy a below-acquisition reimbursement lies first with the PBM. Finally, any \"operational inefficiencies\" caused by Act 900 are insufficient to trigger ERISA pre-emption, even if they cause plans to limit benefits or charge plan members higher rates. See De Buono v. NYSA–ILA Medical and Clinical Services Fund, 520 U. S. 806, 816. Pp. 7–10. 891 F. 3d 1109, reversed and remanded.", "opinion": "Arkansas’ Act 900 regulates the price at which pharmacy benefit managers reimburse pharmacies for the cost of drugs covered by prescription-drug plans. The question presented in this case is whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq., pre-empts Act 900. The Court holds that the Act has neither an impermissible connection with nor reference to ERISA and is therefore not pre-empted. I A Pharmacy benefit managers (PBMs) are a little-known but important part of the process by which many Americans get their prescription drugs. Generally speaking, PBMs serve as intermediaries between prescription-drug plans and the pharmacies that beneficiaries use. When a beneficiary of a prescription-drug plan goes to a pharmacy to fill a prescription, the pharmacy checks with a PBM to determine that person’s coverage and copayment information. After the beneficiary leaves with his or her prescription, the PBM reimburses the pharmacy for the prescription, less the amount of the beneficiary’s copayment. The prescriptiondrug plan, in turn, reimburses the PBM. The amount a PBM \"reimburses\" a pharmacy for a drug is not necessarily tied to how much the pharmacy paid to purchase that drug from a wholesaler. Instead, PBMs’ contracts with pharmacies typically set reimbursement rates according to a list specifying the maximum allowable cost (MAC) for each drug. PBMs normally develop and administer their own unique MAC lists. Likewise, the amount that prescription-drug plans reimburse PBMs is a matter of contract between a given plan and a PBM. A PBM’s reimbursement from a plan often differs from and exceeds a PBM’s reimbursement to a pharmacy. That difference generates a profit for PBMs. In 2015, Arkansas adopted Act 900 in response to concerns that the reimbursement rates set by PBMs were often too low to cover pharmacies’ costs, and that many pharmacies, particularly rural and independent ones, were at risk of losing money and closing. 2015 Ark. Acts no. 900. In effect, Act 900 requires PBMs to reimburse Arkansas pharmacies at a price equal to or higher than that which the pharmacy paid to buy the drug from a wholesaler. Act 900 accomplishes this result through three key enforcement mechanisms. First, the Act requires PBMs to tether reimbursement rates to pharmacies’ acquisition costs by timely updating their MAC lists when drug wholesale prices increase. Ark. Code Ann. §17–92–507(c)(2) (Supp. 2019). Second, PBMs must provide administrative appeal procedures for pharmacies to challenge MAC reimbursement prices that are below the pharmacies’ acquisition costs. §17–92–507(c)(4)(A)(i)(b). If a pharmacy could not have acquired the drug at a lower price from its typical wholesaler, a PBM must increase its reimbursement rate to cover the pharmacy’s acquisition cost. §17–92– 507(c)(4)(C)(i)(b). PBMs must also allow pharmacies to \"reverse and rebill\" each reimbursement claim affected by the pharmacy’s inability to procure the drug from its typical wholesaler at a price equal to or less than the MAC reimbursement price. §17–92–507(c)(4)(C)(iii). Third, and finally, the Act permits a pharmacy to decline to sell a drug to a beneficiary if the relevant PBM will reimburse the pharmacy at less than its acquisition cost. §17–92–507(e). B Respondent Pharmaceutical Care Management Association (PCMA) is a national trade association representing the 11 largest PBMs in the country. After the enactment of Act 900, PCMA filed suit in the Eastern District of Arkansas, alleging, as relevant here, that Act 900 is pre-empted by ERISA. See 29 U. S. C. §1144(a) (ERISA pre-empts \"any and all State laws insofar as they may now or hereafter relate to any employee benefit plan\"). Before the District Court issued its opinion in response to the parties’ cross-motions for summary judgment, the Court of Appeals for the Eighth Circuit decided, in a different case, that ERISA pre-empts a similar Iowa statute. Pharmaceutical Care Mgmt. Assn. v. Gerhart, 852 F. 3d 722 (2017). The Eighth Circuit concluded that the Iowa statute was pre-empted for two reasons. First, it made \"implicit reference\" to ERISA by regulating PBMs that administer benefits for ERISA plans. Id., at 729. Second, it was impermissibly \"connected with\" an ERISA plan because, by requiring an appeal process for pharmacies to challenge PBM reimbursement rates and restricting the sources from which PBMs could determine pricing, the law limited a plan administrator’s ability to control the calculation of drug benefits. Id., at 726, 731. Concluding that Arkansas’ Act 900 contains similar features, the District Court held that ERISA likewise pre-empts Act 900. 240 F. Supp. 3d 951, 958 (ED Ark. 2017). The Eighth Circuit affirmed. 891 F. 3d 1109, 1113 (2018). This Court granted certiorari. 589 U. S. ___ (2020). II ERISA pre-empts \"any and all State laws insofar as they may now or hereafter relate to any employee benefit plan\" covered by ERISA. 29 U. S. C. §1144(a). \"[A] state law relates to an ERISA plan if it has a connection with or reference to such a plan.\" Egelhoff v. Egelhoff, 532 U. S. 141, 147 (2001) (internal quotation marks omitted). Because Act 900 has neither of those impermissible relationships with an ERISA plan, ERISA does not pre-empt it. A To determine whether a state law has an \"impermissible connection\" with an ERISA plan, this Court considers ERISA’s objectives \"as a guide to the scope of the state law that Congress understood would survive.\" California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 325 (1997) (internal quotation marks omitted). ERISA was enacted \"to make the benefits promised by an employer more secure by mandating certain oversight systems and other standard procedures.\" Gobeille v. Liberty Mut. Ins. Co., 577 U. S. 312, 320–321 (2016). In pursuit of that goal, Congress sought \"to ensure that plans and plan sponsors would be subject to a uniform body of benefits law,\" thereby \"minimiz[ing] the administrative and financial burden of complying with conflicting directives\" and ensuring that plans do not have to tailor substantive benefits to the particularities of multiple jurisdictions. Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 142 (1990). ERISA is therefore primarily concerned with preempting laws that require providers to structure benefit plans in particular ways, such as by requiring payment of specific benefits, Shaw v. Delta Air Lines, Inc., 463 U. S. 85 (1983), or by binding plan administrators to specific rules for determining beneficiary status, Egelhoff, 532 U. S. 141. A state law may also be subject to pre-emption if \"acute, albeit indirect, economic effects of the state law force an ERISA plan to adopt a certain scheme of substantive coverage.\" Gobeille, 577 U. S., at 320 (internal quotation marks omitted). As a shorthand for these considerations, this Court asks whether a state law \"governs a central matter of plan administration or interferes with nationally uniform plan administration.\" Ibid. (internal quotation marks and ellipsis omitted). If it does, it is pre-empted. Crucially, not every state law that affects an ERISA plan or causes some disuniformity in plan administration has an impermissible connection with an ERISA plan. That is especially so if a law merely affects costs. In New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 (1995), this Court addressed a New York law that imposed surcharges of up to 13% on hospital billing rates for patients covered by insurers other than Blue Cross/Blue Shield (Blues). Plans that bought insurance from the Blues therefore paid less for New York hospital services than plans that did not. This Court presumed that the surcharges would be passed on to insurance buyers, including ERISA plans, which in turn would incentivize ERISA plans to choose the Blues over other alternatives in New York. Id., at 659. Nevertheless, the Court held that such an \"indirect economic influence\" did not create an impermissible connection between the New York law and ERISA plans because it did not \"bind plan administrators to any particular choice.\" Ibid. The law might \"affect a plan’s shopping decisions, but it [did] not affect the fact that any plan will shop for the best deal it can get.\" Id., at 660. If a plan wished, it could still provide a uniform interstate benefit package. Ibid. short, ERISA does not pre-empt state rate regulations that merely increase costs or alter incentives for ERISA plans without forcing plans to adopt any particular scheme of substantive coverage. Id., at 668; cf. De Buono v. NYSA– ILA Medical and Clinical Services Fund, 520 U. S. 806, 816 (1997) (concluding that ERISA did not pre-empt a state tax on gross receipts for patient services that simply increased the cost of providing benefits); Dillingham, 519 U. S., at 332 (holding that ERISA did not pre-empt a California statute that incentivized, but did not require, plans to follow certain standards for apprenticeship programs). The logic of Travelers decides this case. Like the New York surcharge law in Travelers, Act 900 is merely a form of cost regulation. It requires PBMs to reimburse pharmacies for prescription drugs at a rate equal to or higher than the pharmacy’s acquisition cost. PBMs may well pass those increased costs on to plans, meaning that ERISA plans may pay more for prescription-drug benefits in Arkansas than in, say, Arizona. But \"cost uniformity was almost certainly not an object of pre-emption.\" Travelers, 514 U. S., at 662. Nor is the effect of Act 900 so acute that it will effectively dictate plan choices. See id., at 668. Indeed, Act 900 is less intrusive than the law at issue in Travelers, which created a compelling incentive for plans to buy insurance from the Blues instead of other insurers. Act 900, by contrast, applies equally to all PBMs and pharmacies in Arkansas. As a result, Act 900 does not have an impermissible connection with an ERISA plan. B Act 900 also does not \"refer to\" ERISA. A law refers to ERISA if it \"‘acts immediately and exclusively upon ERISA plans or where the existence of ERISA plans is essential to the law’s operation.’\" Gobeille, 577 U. S., at 319–320 (quoting Dillingham, 519 U. S., at 325; ellipsis omitted). Act 900 does not act immediately and exclusively upon ERISA plans because it applies to PBMs whether or not they manage an ERISA plan. Indeed, the Act does not directly regulate health benefit plans at all, ERISA or otherwise. It affects plans only insofar as PBMs may pass along higher pharmacy rates to plans with which they contract. ERISA plans are likewise not essential to Act 900’s operation. Act 900 defines a PBM as any \"entity that administers or manages a pharmacy benefits plan or program,\" and it defines a \"pharmacy benefits plan or program,\" in turn, as any \"plan or program that pays for, reimburses, covers the cost of, or otherwise provides for pharmacist services to individuals who reside in or are employed in [Arkansas].\" Ark. Code Ann. §§17–92–507(a)(7), (9). Under those provisions, Act 900 regulates PBMs whether or not the plans they service fall within ERISA’s coverage.1 Act 900 is therefore analogous to the law in Travelers, which did not refer to ERISA plans because it imposed surcharges \"regardless of whether the commercial coverage [was] ultimately secured by an ERISA plan, private purchase, or otherwise.\" 514 U. S., at 656; see also Dillingham, 519 U. S., at 328 (concluding that the relevant California law did not refer to ERISA plans because the apprenticeship programs it regulated did not need to be ERISA programs). III PCMA disagrees that Act 900 amounts to nothing more than cost regulation. It contends that Act 900 has an impermissible connection with an ERISA plan because its enforcement mechanisms both directly affect central matters of plan administration and interfere with nationally uniform plan administration. The mechanisms that PCMA identifies, however, do not require plan administrators to structure their benefit plans in any particular manner, nor do they lead to anything more than potential operational inefficiencies.2 PCMA first claims that Act 900 affects plan design by mandating a particular pricing methodology for pharmacy benefits. As PCMA reasons, while a plan might prefer that PBMs reimburse pharmacies using a MAC list constructed with an eye toward containing costs and ensuring predictability, Act 900 ignores that preference and instead requires PBMs to reimburse pharmacies based on acquisition costs. But that argument is just a long way of saying that Act 900 regulates reimbursement rates. Requiring PBMs to reimburse pharmacies at or above their acquisition costs does not require plans to provide any particular benefit to any particular beneficiary in any particular way. It simply establishes a floor for the cost of the benefits that plans choose to provide. The plans in Travelers might likewise have preferred that their insurers reimburse hospital services without paying an additional surcharge, but that did not transform New York’s cost regulation into central plan administration.3 Act 900’s appeal procedure likewise does not govern central matters of plan administration. True, plan administrators must \"comply with a particular process, subject to state-specific deadlines, and [Act 900] dictates the substantive standard governing the resolution of [an] appeal.\" Brief for Respondent 24. Moreover, if a pharmacy wins its appeal, a plan, depending on the terms of its contract with a PBM, may need to recalculate and reprocess how much it (and its beneficiary) owes. But any contract dispute implicating the cost of a medical benefit would involve similar demands and could lead to similar results. Taken to its logical endpoint, PCMA’s argument would pre-empt any suits under state law that could affect the price or provision of benefits. Yet this Court has held that ERISA does not preempt \"state-law mechanisms of executing judgments against ERISA welfare benefit plans, even when those mechanisms prevent plan participants from receiving their benefits.\" Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 831–832 (1988). PCMA also argues that Act 900 interferes with central matters of plan administration by allowing pharmacies to decline to dispense a prescription if the PBM’s reimbursement will be less than the pharmacy’s cost of acquisition. PCMA contends that such a refusal effectively denies plan beneficiaries their benefits, but that argument misunderstands the statutory scheme. Act 900 requires PBMs to compensate pharmacies at or above their acquisition costs. When a pharmacy declines to dispense a prescription, the responsibility lies first with the PBM for offering the pharmacy a below-acquisition reimbursement. Finally, PCMA argues that Act 900’s enforcement mechanisms interfere with nationally uniform plan administration by creating \"operational inefficiencies.\" Brief for Respondent 34. But creating inefficiencies alone is not enough to trigger ERISA pre-emption. See, e.g., Mackey, 486 U. S., at 831 (holding that ERISA did not pre-empt a state garnishment procedure despite petitioners’ contention that such actions would impose \"substantial administrative burdens and costs\" on plans). PCMA argues that those operational inefficiencies will lead to increased costs and, potentially, decreased benefits. ERISA does not pre-empt a state law that merely increases costs, however, even if plans decide to limit benefits or charge plan members higher rates as a result. See De Buono, 520 U. S., at 816 (\"Any state tax, or other law, that increases the cost of providing benefits to covered employees will have some effect on the administration of ERISA plans, but that simply cannot mean that every state law with such an effect is pre-empted by the federal statute\"). In sum, Act 900 amounts to cost regulation that does not bear an impermissible connection with or reference to ERISA. The judgment of the Eighth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "19-108", "syllabus": "The Uniform Code of Military Justice (UCMJ) has long provided that a military offense, \"punishable by death, may be tried and punished at any time without limitation.\" 10 U. S. C. §843(a). Other military offenses are subject to a 5-year statute of limitations. §843(b). Respondents are three military service members, each convicted of rape. When they were charged, the UCMJ provided that rape could be \"punished by death.\" §920(a) (1994 ed.). Because this Court held that the Eighth Amendment forbids a death sentence for the rape of an adult woman, Coker v. Georgia, 433 U. S. 584, respondents argue that they could not, in fact, have been sentenced to death, and therefore the UCMJ’s 5-year statute of limitations applies and bars their convictions. Agreeing, the Court of Appeals for the Armed Forces set aside their convictions. Held: Respondents’ prosecutions for rape under the UCMJ were timely. Pp. 2–9. (a) Respondents contend that the UCMJ phrase \"punishable by death\" means capable of punishment by death when all applicable law is taken into account. By contrast, the Government sees the phrase as something of a term of art, meaning capable of punishment by death under the penalty provisions of the UCMJ. Pp. 2–3. (b) For three reasons, the phrase’s context—appearing in a statute of limitations provision for prosecutions under the UCMJ—weighs heavily in favor of the Government’s interpretation. Pp. 3–9. (1) First, the UCMJ is a uniform code. As such, a natural referent for a statute of limitations provision within the UCMJ is other law in the UCMJ itself. The most natural place to look for Congress’s answer to whether rape was \"punishable by death\" within the meaning of §843(a) is §920’s directive that rape could be \"punished by death.\" That is so even if the UCMJ’s separate prohibition on \"cruel or unusual punishment,\" §855, would have been held to provide an independent defense against the imposition of the death penalty for rape. Pp. 3–4. (2) Second, respondents’ interpretation of §843(a) is not the sort of limitations provision that Congress is likely to have chosen. Statutes of limitations typically provide clarity, see United States v. Lovasco, 431 U. S. 783, 789, and it is reasonable to presume that clarity is an objective when lawmakers enact such provisions. But if \"punishable by death\" means punishable by death after all applicable law is taken into account, the deadline for filing rape charges would be unclear. That deadline would depend on an unresolved constitutional question about Coker’s application to military prosecutions, on what this Court has described as \"‘evolving standards of decency’\" under the Eighth Amendment, Kennedy v. Louisiana, 554 U. S. 407, 419, and on whether §855 of the UCMJ independently prohibits a death sentence for rape. Pp. 4–7. (3) Third, the ends served by statutes of limitations differ sharply from those served by provisions like the Eighth Amendment or UCMJ §855. Factors legislators may find important in setting a statute of limitations—such as the difficulty of gathering evidence and mounting a prosecution—play no part in the Court’s Eighth Amendment analysis. Thus, it is unlikely that lawmakers would want to tie a statute of limitations to judicial interpretations of such provisions. Pp. 8–9.", "opinion": "We must decide in these cases whether, under the Uniform Code of Military Justice (UCMJ), a prosecution for a rape committed during the period from 1986 to 2006 had to be commenced within five years of the commission of the charged offense or whether such a prosecution could be brought at any time, as is the rule at present. The Court of Appeals for the Armed Forces (CAAF), reversing its prior decisions on this question, held that the statute of limitations was five years and that it therefore barred the rape convictions of respondents, three military service members. See 78 M. J. 289 (2019); 78 M. J. 415 (2019); 79 M. J. 199 (2019). We granted certiorari, 589 U. S. ___ (2019), and now reverse. I The question before us is important, and there are reasonable arguments on both sides, but resolving the question does not require lengthy analysis. During the period at issue, Article 120(a) of the UCMJ provided that rape could be \"punished by death,\" 10 U. S. C. §920(a) (1982 ed.); §920(a) (1994 ed.), and Article 43(a), which was amended in 1986, provided that an offense \"punishable by death\" could be tried and punished \"at any time without limitation,\" National Defense Authorization Act for Fiscal Year 1987, 100 Stat. 3908; see 10 U. S. C. §843(a) (1988 ed.). The crux of the question before us is the meaning of the phrase \"punishable by death\" in the latter provision. Respondents contend—and the CAAF held—that the phrase means capable of punishment by death when all applicable law is taken into account. See United States v. Mangahas, 77 M. J. 220, 224 (2018). Because this Court held in Coker v. Georgia, 433 U. S. 584, 592 (1977), that the Eighth Amendment forbids a death sentence for the rape of an adult woman, respondents argue that they could not, in fact, have been sentenced to death, and therefore the statute of limitations for their crimes (committed in 1998, 2000, and 2005) was the 5-year statute that generally governed non-capital offenses. See 10 U. S. C. §843(b)(1) (1994 ed.); §843(b)(1) (2000 ed.). By contrast, the Government argues that Article 43(a)’s reference to \"punishable by death\" means capable of punishment by death under the penalty provisions of the UCMJ, and since Article 120(a) provided (despite Coker) that rape could be punished by death, it follows that there was no time limit for filing rape charges against respondents. The interpretation advocated by respondents and adopted by the CAAF finds support at first blush in contemporaneous dictionary definitions of the term \"punishable.\" See 12 Oxford English Dictionary 845 (2d ed. 1989) (\"Liable to punishment; capable of being punished. . . . Of an offence: Entailing punishment\"); Webster’s Third New International Dictionary 1843 (1986) (\"deserving of, or liable to, punishment: capable of being punished by law or right\"); Black’s Law Dictionary 1110 (5th ed. 1979) (\"Deserving of or capable or liable to punishment; capable of being punished by law or right\"); Random House Dictionary of the English Language 1165 (1966) (\"liable to or deserving punishment\"). But upon inspection, definitions shed little light on the dispute because they largely re-raise the question over which the parties divide: capable of being punished under what law? In essence, the Government sees the term \"punishable\" in Article 43(a) as something of a term of art that is defined by the specification of the punishments set out in the penalty provisions of the UCMJ. II On balance, we find the Government’s interpretation more persuasive. The meaning of a statement often turns on the context in which it is made, and that is no less true of statutory language. See Tyler v. Cain, 533 U. S. 656, 662 (2001); Deal v. United States, 508 U. S. 129, 132 (1993); A. Scalia & B. Garner, Reading Law 167 (2012). And in these cases, context is determinative. The phrase \"punishable by death\" appears in a statute of limitations provision for prosecutions under the UCMJ, and for at least three reasons, that context weighs heavily in favor of the Government’s interpretation. A First, a natural referent for a statute of limitations provision within the UCMJ is other law in the UCMJ itself. The UCMJ is, after all, a \"uniform code,\" one that reformed and modernized the old system of military justice \"from top to bottom.\" Burns v. Wilson, 346 U. S. 137, 141 (1953). No one would read Article 43’s references to \"offense[s]\" to include those under state law, for example. Rather, the UCMJ establishes the jurisdiction of general courts-martial \"to try persons subject to this chapter for any offense made punishable by this chapter.\" 10 U. S. C. §818 (1982 ed.). Courts-martial may then \"adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized by this chapter.\" Ibid. \"[T]his chapter\" is the UCMJ, §801 et seq., and during the relevant time period, provisions within that chapter like Article 120 specifically authorized the death penalty for certain serious offenses, see, e.g., §894 (mutiny or sedition); §899 (misbehavior before the enemy); §900 (subordinate compelling surrender); §901 (improper use of countersign); §902 (forcing a safeguard); §904 (aiding the enemy); §906 (spies); §918 (murder). When amending Article 43(a), the 1986 Congress appears simply to have saved itself the trouble of maintaining a long list of such offenses. Cf. §843(a) (1982 ed.) (listing \"aiding the enemy, mutiny, or murder\"). In the context of the UCMJ, therefore, Article 120’s directive that rape could be \"punished by death\" is the most natural place to look for Congress’s answer to whether rape was \"punishable by death\" within the meaning of Article 43(a). We think that is so even if, as respondents argue, the separate prohibition on \"cruel or unusual punishment\" in Article 55 of the UCMJ would have been held to provide an independent defense against the imposition of the death penalty for rape. 10 U. S. C. §855 (1982 ed.). B Second, one principal benefit of statutes of limitations is that typically they provide clarity, see United States v. Lovasco, 431 U. S. 783, 789 (1977) (\"[S]tatutes of limitations . . . provide predictable, legislatively enacted limits on prosecutorial delay . . . \"); Artis v. District of Columbia, 583 U. S. ___, ___ (2018) (slip op., at 19) (noting that one \"primary purpos[e]\" of limitations statutes in the civil context is \"preventing surprises\" to defendants (internal quotation marks omitted)), and it is therefore reasonable to presume that clarity is an objective for which lawmakers strive when enacting such provisions. Other things being equal, certainty in statutes of limitations generally serves the interests of all concerned, and that is certainly true with respect to the statute of limitations for rape. For prosecutors handling such cases, it is obviously helpful to know the deadline by which charges must be filed. For persons who know they may be under investigation, a known statute of limitations provides a date after which they may no longer fear arrest and trial. And for rape victims, who often wrestle with the painful decision whether to identify their attackers and press charges, a clear deadline allows them to know by when they must make that choice. If \"punishable by death\" in Article 43(a) means punishable by death under the penalty provisions of the UCMJ, the rule regarding the latest possible date for commencing a rape prosecution is clear: The prosecution may be brought \"at any time without limitation.\" By contrast, if \"punishable by death\" meant punishable by death after all applicable law is taken into account, the deadline for filing rape charges would be unclear. The deadline would depend on the answer to an unresolved constitutional question about which the parties in these cases vigorously disagree. Respondents argue that the logic of the decision in Coker applies equally to civilian and military prosecutions, but the Government contends that the military context dictates a different outcome. Among other things, the Government argues that a rape committed by a service member may cause special damage by critically undermining unit cohesion and discipline and that, in some circumstances, the crime may have serious international implications. That also appears to have been the view of Congress and the Executive. After Coker was decided in 1977, Congress changed the maximum penalty for rape in civilian cases from death to life imprisonment, see Sexual Abuse Act of 1986, 100 Stat. 3663, but it made no such change in the UCMJ. On the contrary, in 2006 Congress noted that death would remain an available punishment for rape \"[u]ntil the President otherwise provide[d].\" National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3263. And Presidents continued until 2016 to provide for death as a permissible punishment for rape under the UCMJ. See Exec. Order No. 13740, 3 CFR 510 (2016). If Article 43(a) meant what respondents claim and what the CAAF held, Congress would have adopted a statute of limitations provision without knowing with certainty what it would mean. Indeed, Congress would have adopted a statute of limitations provision the meaning of which would not be settled until this Court decided the disputed question of Coker’s applicability to the military, and there was no reason to think at the time of Article 43(a)’s amendment in 1986 that this Court would resolve that question any time soon. We have never considered a direct Eighth Amendment challenge to a sentence of death for rape under the UCMJ. And it was predictable that we would not reach the statute of limitations question until cases like those now before us came up for review—that is, until we had occasion to consider cases in which defendants were convicted after being charged more than five years after the commission of the offense. That state of affairs virtually guaranteed that the statute of limitations for rape under the UCMJ would be up in the air for years. And the uncertainty would not end there. This Court has held that the Eighth Amendment incorporates \"‘evolving standards of decency.’\" Kennedy v. Louisiana, 554 U. S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion); emphasis added). Thus, even if we were to hold that rape could be punished by death in the military context, the evolving-standards test could later lead to a different result and thus a different statute of limitations at some point in the future. Such evolution has been held to have occurred on a number of past occasions. Compare Atkins v. Virginia, 536 U. S. 304, 321 (2002) (Eighth Amendment prohibits death penalty for defendant described as mentally retarded), with Penry v. Lynaugh, 492 U. S. 302, 340 (1989) (Eighth Amendment permits death penalty for such a defendant); compare also Roper v. Simmons, 543 U. S. 551, 574–575 (2005) (Eighth Amendment prohibits death penalty for crime committed by person under 18 years of age), with Stanford v. Kentucky, 492 U. S. 361, 380 (1989) (Eighth Amendment permits death penalty for defendants who are at least 16 years of age). Finally, if \"punishable by death\" under Article 43(a) meant punishable by death when all applicable law is taken into account, the statute of limitations would also turn on whether, as respondents now maintain, Article 55 of the UCMJ independently prohibits a death sentence for rape. Article 55 forbids \"cruel or unusual punishment[s],\" 10 U. S. C. §855; §855 (1982 ed.), and here again respondents and the Government offer different interpretations. Respondents argue that Article 55 of its own force applies Coker’s rule to the military, while the Government maintains that Article 55 cannot reasonably be read to forbid a punishment that another provision of the UCMJ specifically authorizes. In short, if we accepted the interpretation of Article 43(a) adopted by the CAAF and defended by respondents, we would have to conclude that this provision set out a statute of limitations that no one could have understood with any real confidence until important and novel legal questions were resolved by this Court. That is not the sort of limitations provision that Congress is likely to have chosen. Third, the factors that lawmakers are likely to take into account when fixing the statute of limitations for a crime differ significantly from the considerations that underlie our Eighth Amendment decisions. We therefore should not lightly assume that Congress tied the meaning of the statutes of limitations in Article 43 to the Eighth Amendment. One factor that legislators may find important in setting the statute of limitations for a crime is the difficulty of gathering evidence and mounting a prosecution for that offense. This factor may have been influential in calibrating the statutes of limitations for rape and other sexual offenses in more recent years. The trauma inflicted by such crimes may impede the gathering of the evidence needed to bring charges. Victims may be hesitant for some time after the offense about agreeing to testify. Thus, under current federal law, many such offenses are subject to no statute of limitations. See 18 U. S. C. §3299 (permitting prosecution at any time for felonies under §§2241–2248, 2251–2256, 2258–2260A, and 2421–2429); see also 10 U. S. C. §843(a) (expressly setting no limitations period under UCMJ for prosecuting rape, sexual assault, and rape or sexual assault of a child). This factor—the difficulty of assembling evidence and putting together a prosecution—obviously plays no part in our Eighth Amendment analysis. As noted, in deciding whether the Eighth Amendment permits a death sentence for a particular category of offenses or offenders, the Court has looked to evolving societal standards of decency and has also rendered its own independent judgment about whether a death sentence would aptly serve the recognized purposes of criminal punishment in certain categories of cases. See Kennedy, 554 U. S., at 419–421, 441–446; Roper, 543 U. S., at 561, 571–575; Atkins, 536 U. S., at 318–321. Some Justices have eschewed aspects of those approaches and have looked instead to the original understanding of the Eighth Amendment. See, e.g., Graham v. Florida, 560 U. S. 48, 99– 102 (2010) (THOMAS, J., dissenting); Atkins, 536 U. S., at 348–349 (Scalia, J., dissenting); Thompson v. Oklahoma, 487 U. S. 815, 864, 872–873 (1988) (same); cf. Glossip v. Gross, 576 U. S. 863, 894, 898–899 (2015) (Scalia, J., concurring). But under either method, the inquiry is quite different from the one that a lawmaker might make in fixing a statute of limitations. Accordingly, since the ends served by statutes of limitations differ sharply from those served by provisions like the Eighth Amendment or Article 55 of the UCMJ, it is unlikely that lawmakers would want to tie a statute of limitations to judicial interpretations of such provisions. Viewing Article 43(a) in context, we are convinced that \"punishable by death\" is a term of art that is defined by the provisions of the UCMJ specifying the punishments for the offenses it outlaws. And under this interpretation, respondents’ prosecutions were timely. The judgments of the CAAF are reversed, and the cases are remanded for further proceedings consistent with this opinion."},
{"docket_number": "19-309", "syllabus": "Delaware’s Constitution contains a political balance requirement for appointments to the State’s major courts. No more than a bare majority of judges on any of its five major courts \"shall be of the same political party.\" Art. IV, §3. In addition, on three of those courts, those members not in the bare majority \"shall be of the other major political party.\" Ibid. Respondent James R. Adams, a Delaware lawyer and political independent, sued in Federal District Court, claiming that Delaware’s \"bare majority\" and \"major party\" requirements violate his First Amendment right to freedom of association by making him ineligible to become a judge unless he joins a major political party. The District Court held that Adams had standing to challenge both requirements and that Delaware’s balancing scheme was unconstitutional. The Third Circuit affirmed in part and reversed in part. It held that Adams did have standing to challenge the major party requirement, because it categorically excludes independents from becoming judges on three courts, but that he lacked standing to challenge the bare majority requirement, which does not preclude independents from eligibility for any vacancy. Held: Because Adams has not shown that he was \"able and ready\" to apply for a judicial vacancy in the imminent future, he has failed to show a \"personal,\" \"concrete,\" and \"imminent\" injury necessary for Article III standing. Pp. 4–13. (a) Two aspects of standing doctrine are relevant here. First, standing requires an \" ‘injury in fact’ \" that must be \"concrete and particularized,\" as well as \" ‘actual or imminent.’ \" Lujan v. Defenders of Wildlife, 504 U. S. 555, 560. Second, a grievance that amounts to nothing more than an abstract and generalized harm to a citizen’s interest in the proper application of the law does not count as an \"injury in fact\" and does not show standing. Hollingsworth v. Perry, 570 U. S. 693, 706. Pp. 4–5. (b) Adams has not shown the necessary \"injury in fact.\" To establish that he will suffer a concrete, particularized, and imminent injury beyond a generalized grievance, Adams must at least show that he is likely to apply to become a judge in the reasonably foreseeable future, if he were not barred because of political affiliation. He can show this only if he is \" ‘able and ready’ \" to apply. See Gratz v. Bollinger, 539 U. S. 244, 262. Adams’ only supporting evidence is two statements he made that he wanted to be, and would apply to be, a judge on any of Delaware’s five courts. Those statements must be considered in the context of the record. Pp. 5–9. (c) The record evidence fails to show that, at the time he commenced the lawsuit, Adams was \"able and ready\" to apply for a judgeship in the reasonably foreseeable future. First, Adams’ statements stand alone, without any other supporting evidence, like efforts to determine possible judicial openings or other such preparations. Second, the context suggests an abstract, generalized grievance, not an actual desire to become a judge. For example, Adams did not apply for numerous existing judicial vacancies while he was a registered Democrat and eligible for those vacancies. He then read a law review article arguing that Delaware’s judicial eligibility requirements unconstitutionally excluded independents, changed his political affiliation to independent, and filed this lawsuit shortly thereafter. Third, a holding that Adams’ few words of general intent were sufficient to show an \"injury in fact\" would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions. Finally, precedent supports the conclusion that an injury in fact requires an intent that is concrete. See, e.g., Lujan, supra. And arguably similar cases in which standing was found all contained more evidence that the plaintiff was \"able and ready\" than Adams has provided. See, e.g., Adarand Constructors, Inc. v. Peña, 515 U. S. 200. Pp. 9–13. 922 F. 3d. 166, vacated and remanded.", "opinion": "This case concerns a Delaware constitutional provision that requires that appointments to Delaware’s major courts reflect a partisan balance. Delaware’s Constitution states that no more than a bare majority of members of any of its five major courts may belong to any one political party. Art. IV, §3. It also requires, with respect to three of those courts, that the remaining members belong to \"the other major political party.\" Ibid. The plaintiff, a Delaware lawyer, brought this lawsuit in federal court. He claimed that Delaware’s party-membership requirements for its judiciary violate the Federal Constitution. We agreed to consider the constitutional question, but only if the plaintiff has standing to raise that question. We now hold that he does not. I The Delaware Constitution contains a political balance requirement applicable to membership on all five of its courts: the Supreme Court, the Chancery Court, the Superior Court, the Family Court, and the Court of Common Pleas. The provision says that no more than a bare majority of judges on any of these courts \"shall be of the same political party.\" Ibid. (We shall call this requirement the \"bare majority\" requirement.) The Delaware Constitution also contains a second requirement applicable only to the Supreme Court, the Chancery Court, and the Superior Court. It says that the remaining members of those three courts (those not in the bare majority) \"shall be of the other major political party.\" Ibid. (We shall call this the \"major party\" requirement.) Thus, all five courts are subject to the \"bare majority\" requirement, and three of the five courts are additionally subject to the \"major party\" requirement. On February 21, 2017, plaintiff-respondent James R. Adams sued Delaware’s Governor, John Carney, in Federal District Court. Adams, then a newly registered political independent, claimed that both of Delaware’s political balance requirements violated his First Amendment right to freedom of association by making him ineligible to become a judge unless he rejoined a major political party. Governor Carney moved to dismiss for lack of standing, and Adams filed an amended complaint in an attempt to rectify the problem. App. 1–2, 17–18. After discovery largely centered on Adams’ history and intentions in seeking a judgeship, the parties cross-moved for summary judgment. Governor Carney argued (1) that Adams lacked standing to assert his constitutional claim, and (2) that, in any event, the requirements were constitutional. Adams argued only that he was entitled to summary judgment on the merits because the political balance requirements made independents like him ineligible for a judgeship. The District Court denied Governor Carney’s summary judgment motion. Id., at 165; App. to Pet. for Cert. 83a. It held that Adams had standing to challenge both the \"major party\" requirement for membership on the Supreme Court, the Chancery Court, and the Superior Court and the \"bare majority\" requirement for membership on the Family Court and the Court of Common Pleas. App. 173–175; App. to Pet. for Cert. 70a–72a. It then granted summary judgment to Adams on the merits, App. 165; App. to Pet. for Cert. 83a, holding that Delaware’s balancing scheme as a whole was unconstitutional, App. 175–181; App. to Pet. for Cert. 75a– 81a. Governor Carney appealed to the United States Court of Appeals for the Third Circuit. The appellate court affirmed in part and reversed in part. Adams v. Governor of Del., 922 F. 3d 166 (2019). Like the District Court, it held that Adams had standing to challenge the major party requirement, id., at 175, but unlike the District Court, it held that Adams did not have standing to challenge the bare majority requirement (in any of the five courts), id., at 174–175. The court held that the bare majority requirement itself does not preclude independents from eligibility for any vacancy. Ibid. The court then focused on the major party requirement, which applies only to three of the five courts. Did that constitutional provision bar independent voters from becoming judges on those courts? If so, was that bar constitutional? If not, was that provision severable from the rest of the Delaware Constitution’s political balance provisions, in particular, from the bare majority requirement as applied to the Supreme Court, the Chancery Court, and the Superior Court? The Third Circuit concluded that the major party requirement categorically excludes independents and members of third parties from becoming judges on the Supreme Court, the Chancery Court, and the Superior Court. 922 F. 3d, at 182–183. It held that the major party requirement consequently violates the Federal Constitution’s First Amendment. Ibid. And it held that the major party requirement is not severable from the bare majority requirement. Id., at 183–184. The Circuit concluded that both requirements (as applied to those three courts) are invalid. Ibid. Governor Carney then filed a petition for a writ of certiorari. He asked us to consider, first, whether the major party requirement is constitutional and, then, if it is not, whether it is severable from the bare majority requirement. Pet. for Cert. i. We granted his petition but asked that the parties first address the question whether Adams has demonstrated Article III standing to bring this lawsuit. II A This case begins and ends with standing. The Constitution grants Article III courts the power to decide \"Cases\" or \"Controversies.\" Art. III, §2. We have long understood that constitutional phrase to require that a case embody a genuine, live dispute between adverse parties, thereby preventing the federal courts from issuing advisory opinions. See Flast v. Cohen, 392 U. S. 83, 96–97 (1968); Coleman v. Miller, 307 U. S. 433, 460 (1939) (opinion of Frankfurter, J.) (\"[I]t was not for courts to pass upon . . . abstract, intellectual problems but only if a concrete, living contest between adversaries called for the arbitrament of law\"). The doctrine of standing implements this requirement by insisting that a litigant \"prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision.\" Hollingsworth v. Perry, 570 U. S. 693, 704 (2013); Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992). Two aspects of standing doctrine are relevant here. First, standing requires an \"‘injury in fact’\" that must be \"concrete and particularized,\" as well as \"‘actual or imminent.’\" Id., at 560. It cannot be \"‘\"conjectural or hypothetical.\"’\" Ibid. Second, a grievance that amounts to nothing more than an abstract and generalized harm to a citizen’s interest in the proper application of the law does not count as an injury in fact.\" And it consequently does not show standing. Hollingsworth, supra, at 706; see also Lance v. Coffman, 549 U. S. 437, 439–441 (2007) (per curiam) (describing this Court’s \"lengthy pedigree\" in refusing to serve as a forum for generalized grievances). In other words, a plaintiff cannot establish standing by asserting an abstract \"general interest common to all members of the public,\" id., at 440, \"no matter how sincere\" or \"deeply committed\" a plaintiff is to vindicating that general interest on behalf of the public, Hollingsworth, supra, at 706–707. Justice Powell explained the reasons for this limitation. He found it \"inescapable\" that to find standing based upon that kind of interest \"would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government.\" United States v. Richardson, 418 U. S. 166, 188 (1974) (concurring opinion). He added that \"[w]e should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.\" Ibid.; see also Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 222 (1974); Warth v. Seldin, 422 U. S. 490, 500 (1975). Cf. Federal Election Comm’n v. Akins, 524 U. S. 11, 21–25 (1998) (finding standing where a group of voters suffered concrete, though widespread, harm when they were prevented from accessing publicly disclosable voting-related material). B We here must ask whether Adams established that, at the time he filed suit, Delaware’s major party provision caused him a concrete, particularized \"injury in fact\" over and above the abstract generalized grievance suffered by all citizens of Delaware who (if Adams is right) must live in a State subject to an unconstitutional judicial selection criterion. We have examined the record that was before the District Court at summary judgment, keeping in mind that Adams bears the burden of establishing standing as of the time he brought this lawsuit and maintaining it thereafter. Lujan, supra, at 561 (plaintiff bears the burden of proving standing); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 191 (2000) (standing is assessed \"at the time the action commences\"); id., at 189 (\"‘The requisite personal interest that must exist at the commencement of the litigation . . . must continue throughout its existence’\"); see also Lujan, supra, at 569, n. 4. And we conclude that Adams did not show the necessary \"injury in fact.\" Adams suffered a \"generalized grievance\" of the kind we have just described. He, like all citizens of Delaware, must live and work within a State that (in his view) imposes unconstitutional requirements for eligibility on three of its courts. Lawyers, such as Adams, may feel sincerely and strongly that Delaware’s laws should comply with the Federal Constitution. Accord, Hollingsworth, 570 U. S., at 706. But that kind of interest does not create standing. Rather, the question is whether Adams will suffer a \"‘personal and individual’\" injury beyond this generalized grievance—an injury that is concrete, particularized, and imminent rather than \"conjectural or hypothetical.\" Id., at 705–706. Adams says he has. He claims that Delaware’s major party requirement in fact prevents him, a political independent, from having his judicial application considered for three of Delaware’s courts. To prove this kind of harm, however, Adams must at least show that he is likely to apply to become a judge in the reasonably foreseeable future if Delaware did not bar him because of political affiliation. And our cases make clear that he can show this only if he is \"‘able and ready’\" to apply. See Gratz v. Bollinger, 539 U. S. 244, 262 (2003); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666 (1993). We have examined the summary judgment record to determine whether Adams made this showing. And, as we have said, we conclude that he has not. The only evidence supporting Adams is two statements he made in his deposition and in his answer to interrogatories that he wants to be, and would apply to be, a judge on any of Delaware’s five courts. He said: \"I would apply for any judicial position that I thought I was qualified for, and I believe I’m qualified for any position that would come up . . . [o]n any of the courts. I would feel less comfortable on Chancery than any other court. I would feel most comfortable on Superior Court, Family Court, Court of Common Pleas, state Supreme Court based on my background, experience, and what I have done in my career.\" App. 34. He added in his answer to interrogatories: \"Adams . . . would seriously consider and apply for any judicial position for which he feels he is qualified. . . . Adams believes that he meets the minimum qualifications to apply for any judicial officer position.\" Id., at 62–63. Those statements, however, must be considered in the context of the record, which contains evidence showing that, at the time he brought this lawsuit, Adams was not \"able and ready\" to apply. First, the record showed that, between 2012 and 2016, during which time Adams was a practicing lawyer and a registered Democrat, Delaware’s five courts had a combined total of 14 openings for which Adams, then a Democrat, would have been eligible. Id., at 51–56, 144–164. Yet he did not apply for any of them. When deposed during discovery, Adams said that in 2014 he had wanted to apply for a Supreme Court or Superior Court judgeship. Id., at 35, 43– 46, 62. Adams said that he could not do so because only Republicans were eligible for those positions that year. Ibid. He was wrong about that. In particular, there were three vacancies on those two courts in 2014 for which he, as a Democrat, was eligible. Id., at 51–54. Adams later conceded that he had indeed been eligible to apply for those vacancies, but he had not done so. Id., at 43–46. Second, on December 31, 2015, after roughly 12 years as a lawyer for the Delaware Department of Justice, Adams retired. Id., at 32, 58. In February 2016, Adams changed his bar membership from \"Active\" to \"Emeritus\" status. Id., at 61. He then returned to \"Active\" status in January 2017. Ibid. In his deposition, he stated that at about that same time in the \"[b]eginning of the year, January/February,\" he read a law review article arguing that Delaware’s judicial eligibility requirements were unconstitutional because they excluded independents. Id., at 38; see Friedlander, Is Delaware’s \"Other Major Political Party\" Really Entitled to Half of Delaware’s Judiciary? 58 Ariz. L. Rev. 1139 (2016). Adams called the article’s author and said, \"‘I just read your Law Review . . . article. I’d like to pursue this.’\" App. 38. The author suggested several attorneys who might handle the matter. Ibid. Third, shortly thereafter, on February 13, 2017, Adams changed his political affiliation from Democrat to unaffiliated independent. Id., at 67. Before that, he had been a Democrat his \"whole life\" and actively involved in the Delaware Democratic Party. Id., at 41. Leaving the party made it less likely that he would become a judge. But doing so made it possible for him to vindicate his view of the law as set forth in the article. Fourth, after Adams became a political independent on February 13, 2017, he filed this lawsuit eight days later on February 21. Id., at 1. Fifth, Adams said in his answer to interrogatories that he \"has no knowledge of what judicial positions may become open in the next year.\" Id., at 62. Sixth, other than the act of filing the lawsuit itself, the summary judgment record contains no evidence of conversations or other actions taken by Adams suggesting that he was \"able and ready\" to apply for a judgeship. During his deposition, Adams provided explanations for this negative evidence. He said that his failure to apply for available judgeships at the time when he was eligible reflected his lack of interest in being a judge at that time. He was then content to work at the Department of Justice. Id., at 35; Brief for Respondent 17–18. Adams added that his return from retirement to \"Active\" bar membership in 2017 showed that he decided on becoming a judge later in life and after a change in administration at the Delaware Department of Justice. App. 33. (Adams did not explain his failure to apply in 2014, though, when, he said, he was interested in a judgeship.) Adams further explained that his contemporaneous change of political affiliation was because he \"tend[s] to be much more progressive and liberal than [D]emocrats in Delaware.\" Id., at 41. Although he had been a lifelong Democrat, and actively involved with the Delaware Democratic Party, he said then that he \"probably consider[s]\" himself \"more of a Bernie [Sanders] independent.\" Id., at 42. Finally, in Adams’ view, the lack of other evidence proves little or nothing about his intentions. C This is a highly fact-specific case. In our view, three considerations, taken together, convince us that the record evidence fails to show that, at the time he commenced the lawsuit, Adams was \"able and ready\" to apply for a judgeship in the reasonably foreseeable future. First, as we have just laid out, Adams’ words \"I would apply . . . \" stand alone without any actual past injury, without reference to an anticipated timeframe, without prior judgeship applications, without prior relevant conversations, without efforts to determine likely openings, without other preparations or investigations, and without any other supporting evidence. Second, the context offers Adams no support. It suggests an abstract, generalized grievance, not an actual desire to become a judge. Indeed, Adams’ failure to apply previously when he was eligible, his reading of the law review article, his change of party affiliation, and his swift subsequent filing of the complaint show a desire to vindicate his view of the law, as articulated in the article he read. Third, if we were to hold that Adams’ few words of general intent—without more and against all contrary evidence—were sufficient here to show an \"injury in fact,\" we would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions at the request of one who, without other concrete injury, believes that the government is not following the law. Adams did not show that he was \"able and ready\" to apply for a vacancy in the reasonably imminent future. Adams has not sufficiently differentiated himself from a general population of individuals affected in the abstract by the legal provision he attacks. We do not decide whether a statement of intent alone under other circumstances could be enough to show standing. But we are satisfied that Adams’ words alone are not enough here when placed in the context of this particular record. Precedent supports the conclusion that an injury in fact requires an intent that is concrete. In Lujan, for example, organizations dedicated to wildlife conservation sought to enjoin enforcement of a federal regulation that they believed would unlawfully harm endangered species. Lujan, 504 U. S., at 563–564. The organizations’ members had previously visited the species’ habitats abroad, and they said that they intended to return to those foreign habitats in the future. Ibid. This Court recognized that having to view a species-impoverished habitat could constitute a cognizable injury. Id., at 562–563. But it pointed out that the plaintiffs had not described any concrete plans to visit those habitats, nor had they said when they would do so. Id., at 563–564. The Court said that the organizations had set forth only \"‘some day’ intentions.\" Id., at 564. And \"some day intentions\" do \"not support a finding of the ‘actual or imminent’ injury that our cases require.\" Ibid. For another thing, arguably similar cases in which this Court has found standing all contained more evidence that the plaintiff was \"able and ready\" than Adams has provided here. In Adarand Constructors, Inc. v. Peña, 515 U. S. 200 (1995), for example, a subcontractor challenging a racebased program for allocating contracts established standing by showing that it \"bids on every guardrail project in Colorado,\" that the defendant \"is likely to let contracts involving guardrail work . . . at least once per year in Colorado,\" and that the plaintiff \"is very likely to bid on each such contract.\" Id., at 212. In Associated Gen. Contractors, 508 U. S., at 666, the Court held that an association of contractors had standing to attack as unlawful a race-based set-aside program for awarding contracts. The contractors showed that they were \"able and ready to bid on [future] contracts,\" for it was undisputed that they had \"regularly bid on construction contracts in Jacksonville, and that they would have bid on contracts set aside pursuant to the city’s ordinance were they so able.\" Id., at 666, 668. The Court noted that it \"must assume that [these allegations] are true\" because they were not challenged in any way. Id., at 668–669. In Gratz, 539 U. S., at 262, we held that a plaintiff had standing to attack as unlawful a university’s affirmative action admissions policy. The plaintiff had applied for admission to the university as a freshman applicant in the recent past and been rejected. Ibid. He said he intended to apply to transfer to the university in the near future, should the university cease using affirmative action in its transfer admissions process. Ibid. And the university had a \"rolling\" transfer program open for application each year, so there was no doubt that the plaintiff ’s injury was imminent. Id., at 256. The Court therefore concluded that he was \"‘able and ready’\" to apply as a transfer student. Id., at 262. Unlike Adams, none of these plaintiffs relied on a bare statement of intent alone against the context of a record that shows nothing more than an abstract generalized grievance. Rather, each introduced at least some evidence that, e.g., they had applied in the past, there were regular opportunities available with relevant frequency, and they were \"able and ready\" to apply for them. By way of contrast, our precedents have also said that a plaintiff need not \"translat[e]\" his or her \"desire for a job . . . into a formal application\" where that application would be merely a \"futile gesture.\" Teamsters v. United States, 431 U. S. 324, 365–366 (1977); see also Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941, 944, n. 2 (1982). And we have said that an \"aggrieved party ‘need not allege that he would have obtained the benefit but for the [unlawful] barrier in order to establish standing.’\" Adarand Constructors, supra, at 211; see also Gratz, supra, at 262; Associated Gen. Contractors, supra, at 666. We do not here depart from or modify these or any other of the precedents to which we have referred. Rather, our holding follows from a straightforward application of precedent to the particular summary judgment record before us. And, as we have explained, in the context set forth by the evidence, Adams has not shown that he was \"able and ready\" to apply in the imminent future. Consequently, he has failed to show that \"personal,\" \"concrete,\" and \"imminent\" injury upon which our standing precedents insist. For these reasons, we reverse the Third Circuit’s decision in respect to standing, vacate the judgment, and remand with instructions to dismiss the case."},
{"docket_number": "19-71", "syllabus": "The Religious Freedom Restoration Act of 1993 (RFRA) was enacted in the wake of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, to provide a remedy to redress Federal Government violations of the right to free exercise under the First Amendment. Respondents are practicing Muslims who sued under RFRA, claiming that federal agents placed them on the No Fly List for refusing to act as informants against their religious communities. They sought injunctive relief against the agents in their official capacities and monetary damages against the agents in their individual capacities. As relevant here, the District Court found that RFRA does not permit monetary relief and dismissed their individual-capacity claims. The Second Circuit reversed, holding that RFRA’s remedies provision encompasses money damages against Government officials. Held: RFRA’s express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities. Pp. 3–9. (a) RFRA’s text provides that persons may sue and \"obtain appropriate relief against a government,\" 42 U. S. C. §2000bb–1(c), including an \"official (or other person acting under color of law) of the United States,\" §2000bb–2(1). RFRA supplants the ordinary meaning of \"government\" with a different, express definition that includes \"official[s].\" It then underscores that \"official[s]\" are \"person[s].\" Under RFRA’s definition, relief that can be executed against an \"official . . . of the Unites States\" is \"relief against a government.\" This reading is confirmed by RFRA’s use of the phrase \"persons acting under color of law,\" which has long been interpreted by this Court in the 42 U. S. C. §1983 context to permit suits against officials in their individual capacities. See, e.g., Memphis Community School Dist. v. Stachura, 477 U. S. 299, 305–306. Pp. 3–5. (b) RFRA’s term \"appropriate relief\" is \"open-ended\" on its face; thus, what relief is \" ‘appropriate’ \" is \"inherently context dependent.\" Sossamon v. Texas, 563 U. S. 277, 286. In the context of suits against Government officials, damages have long been awarded as appropriate relief, and though more limited today, they remain an appropriate form of relief. The availability of damages under §1983 is particularly salient here. When Congress first enacted RFRA, the definition of \"government\" included state and local officials. In order to reinstate the pre-Smith substantive protections of the First Amendment and the right to vindicate those protections by a claim, §2000bb(b), the remedies provision must have encompassed at least the same forms of relief authorized by §1983. Because damages claims have always been available under §1983 for clearly established violations of the First Amendment, that means RFRA provides, as one avenue for relief, a right to seek damages against Government employees. The presumption in Sossamon, 563 U. S. 277, is inapplicable because this case does not involve sovereign immunity. Pp. 5–9.", "opinion": "The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the Federal Government from imposing substantial burdens on religious exercise, absent a compelling interest pursued through the least restrictive means. 107 Stat. 1488, 42 U. S. C. §2000bb et seq. It also gives a person whose religious exercise has been unlawfully burdened the right to seek \"appropriate relief.\" The question here is whether \"appropriate relief\" includes claims for money damages against Government officials in their individual capacities. We hold that it does. I A RFRA secures Congress’ view of the right to free exercise under the First Amendment, and it provides a remedy to redress violations of that right. Congress passed the Act in the wake of this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 885– 890 (1990), which held that the First Amendment tolerates neutral, generally applicable laws that burden or prohibit religious acts even when the laws are unsupported by a narrowly tailored, compelling governmental interest. See §2000bb(a). RFRA sought to counter the effect of that holding and restore the pre-Smith \"compelling interest test\" by \"provid[ing] a claim . . . to persons whose religious exercise is substantially burdened by government.\" §§2000bb(b)(1)– (2). That right of action enables a person to \"obtain appropriate relief against a government.\" §2000bb–1(c). A \"‘government’\" is defined to include \"a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.\" §2000bb–2(1). B Respondents Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are practicing Muslims who claim that Federal Bureau of Investigation agents placed them on the No Fly List in retaliation for their refusal to act as informants against their religious communities. Respondents sued various agents in their official capacities, seeking removal from the No Fly List. They also sued the agents in their individual capacities for money damages. According to respondents, the retaliation cost them substantial sums of money: airline tickets wasted and income from job opportunities lost. More than a year after respondents sued, the Department of Homeland Security informed them that they could now fly, thus mooting the claims for injunctive relief. The District Court then dismissed the individual-capacity claims for money damages, ruling that RFRA does not permit monetary relief. The Second Circuit reversed. 894 F. 3d 449 (2018). It determined that RFRA’s express remedies provision, combined with the statutory definition of \"Government,\" authorizes claims against federal officials in their individual capacities. Relying on our precedent and RFRA’s broad protections for religious liberty, the court concluded that the open-ended phrase \"appropriate relief\" encompasses money damages against officials. We granted certiorari, 589 U. S. ___ (2019), and now affirm. II As usual, we start with the statutory text. E.g., Mission Product Holdings, Inc. v. Tempnology, LLC, 587 U. S. ___, ___ (2019) (slip op., at 8). A person whose exercise of religion has been unlawfully burdened may \"obtain appropriate relief against a government.\" 42 U. S. C. §2000bb–1(c). A We first have to determine if injured parties can sue Government officials in their personal capacities. RFRA’s text provides a clear answer: They can. Persons may sue and obtain relief \"against a government,\" §2000bb–1(c), which is defined to include \"a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.\" §2000bb–2(1) (emphasis added). The Government urges us to limit lawsuits against officials to suits against them in their official, not personal, capacities. A lawsuit seeking damages from employees in their individual capacities, the Government argues, is not really \"against a government\" because relief \"can be executed only against the official’s personal assets.\" Kentucky v. Graham, 473 U. S. 159, 166 (1985). The problem with this otherwise plausible argument is that Congress supplanted the ordinary meaning of \"government\" with a different, express definition. \"‘When a statute includes an explicit definition, we must follow that definition,’ even if it varies from a term’s ordinary meaning.\" Digital Realty Trust, Inc. v. Somers, 583 U. S. ___, ___ (slip op., at 9) (quoting Burgess v. United States, 553 U. S. 124, 130 (2008)). For example, if a statute defines a \"State\" to include territories and districts, that addition to the plain meaning controls. See, e.g., 15 U. S. C. §267. So too here. A \"government,\" under RFRA, extends beyond the term’s plain meaning to include officials. And the term \"official\" does not refer solely to an office, but rather to the actual person \"who is invested with an office.\" 10 Oxford English Dictionary 733 (2d ed. 1989). Under RFRA’s definition, relief that can be executed against an \"official . . . of the United States\" is \"relief against a government.\" 42 U. S. C. §§2000bb–1(c), 2000bb–2(1). Not only does the term \"government\" encompass officials, it also authorizes suits against \"other person[s] acting under color of law.\" §2000bb–2(1). The right to obtain relief against \"a person\" cannot be squared with the Government’s reading that relief must always run against the United States. Moreover, the use of the phrase \"official (or other person . . . )\" underscores that \"official[s]\" are treated like \"person[s].\" Ibid. (emphasis added). In other words, the parenthetical clarifies that \"a government\" includes both individuals who are officials acting under color of law and other, additional individuals who are nonofficials acting under color of law. Here, respondents sued the former. The legal \"backdrop against which Congress enacted\" RFRA confirms the propriety of individual-capacity suits. Stewart v. Dutra Constr. Co., 543 U. S. 481, 487 (2005). The phrase \"persons acting under color of law\" draws on one of the most well-known civil rights statutes: 42 U. S. C. §1983. That statute applies to \"person[s] . . . under color of any statute,\" and this Court has long interpreted it to permit suits against officials in their individual capacities. See, e.g., Memphis Community School Dist. v. Stachura, 477 U. S. 299, 305–306, and n. 8 (1986). Because RFRA uses the same terminology as §1983 in the very same field of civil rights law, \"it is reasonable to believe that the terminology bears a consistent meaning.\" A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 323 (2012). A suit against an official in his personal capacity is a suit against a person acting under color of law. And a suit against a person acting under color of law is a suit against \"a government,\" as defined under RFRA. §2000bb–1(c). B The question then becomes what \"appropriate relief\" entails. Without a statutory definition, we turn to the phrase’s plain meaning at the time of enactment. See FCC v. AT&T Inc., 562 U. S. 397, 403 (2011). \"Appropriate\" means \"[s]pecially fitted or suitable, proper.\" 1 Oxford English Dictionary, at 586; see also Merriam-Webster’s Collegiate Dictionary 57 (10th ed. 1996) (\"especially suitable or compatible\"). Because this language is \"open-ended\" on its face, what relief is \"‘appropriate’\" is \"inherently context dependent.\" Sossamon v. Texas, 563 U. S. 277, 286 (2011) (interpreting identical language). In the context of suits against Government officials, damages have long been awarded as appropriate relief. In the early Republic, \"an array of writs . . . allowed individuals to test the legality of government conduct by filing suit against government officials\" for money damages \"payable by the officer.\" Pfander & Hunt, Public Wrongs and Private Bills: Indemnification and Govt Accountability in the Early Republic, 85 N. Y. U. L. Rev. 1862, 1871–1875 (2010); see id., at 1875, n. 52 (collecting cases). These common-law causes of action remained available through the 19th century and into the 20th. See, e.g., Little v. Barreme, 2 Cranch 170 (1804); Elliott v. Swartwout, 10 Pet. 137 (1836); Mitchell v. Harmony, 13 How. 115 (1852); Buck v. Colbath, 3 Wall. 334 (1866); Belknap v. Schild, 161 U. S. 10 (1896); Philadelphia Co. v. Stimson, 223 U. S. 605, 619–620 (1912) (\"The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully invaded\"). Though more limited, damages against federal officials remain an appropriate form of relief today. In 1988 the Westfall Act foreclosed common-law claims for damages Court against federal officials, 28 U. S. C. §2679, but it left open claims for constitutional violations and certain statutory violations. §§2679(b)(2)(A)–(B). Indeed, the Act expressly contemplates that a statute could authorize an action for damages against Government employees. §2679(b)(2)(B) (explaining that the displacement of remedies \"does not extend or apply to a civil action against an employee of the Government . . . which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized\"). Damages are also commonly available against state and local government officials. In 1871, for example, Congress passed the precursor to §1983, imposing liability on any person who, under color of state law, deprived another of a constitutional right. 17 Stat. 13; see also Myers v. Anderson, 238 U. S. 368, 379, 383 (1915) (affirming award of damages against state election officials). By the time Congress enacted RFRA, this Court had interpreted the modern version of §1983 to permit monetary recovery against officials who violated \"clearly established\" federal law. E.g., Procunier v. Navarette, 434 U. S. 555, 561–562 (1978); Siegert v. Gilley, 500 U. S. 226, 231 (1991). This availability of damages under §1983 is particularly salient in light of RFRA’s origins. When first enacted, RFRA defined \"‘government’\" to include an \"official (or other person acting under color of law) of the United States, a State, or a subdivision of a State.\" 107 Stat. 1489 (emphasis added). It made no distinction between state and federal officials. After this Court held that RFRA could not be enforced against the States, see City of Boerne v. Flores, 521 U. S. 507, 511 (1997), Congress narrowly amended the definition \"by striking ‘a State, or a subdivision of a State.’\" 114 Stat. 806. That context is important because RFRA made clear that it was reinstating both the pre-Smith substantive protections of the First Amendment and the right to vindicate those protections by a claim. §2000bb(b). There is no doubt that damages claims have always been available under §1983 for clearly established violations of the First Amendment. See, e.g., Sause v. Bauer, 585 U. S. ___ (2018) (per curiam) (reversing grant of qualified immunity in a case seeking damages under §1983 based on alleged violations of free exercise rights and Fourth Amendment rights); Murphy v. Missouri Dept. of Corrections, 814 F. 2d 1252, 1259 (CA8 1987) (remanding to enter judgment for plaintiffs on a §1983 free speech and free exercise claims and to determine and order \"appropriate relief, which . . . may, if appropriate, include an award\" of damages). Given that RFRA reinstated pre-Smith protections and rights, parties suing under RFRA must have at least the same avenues for relief against officials that they would have had before Smith. That means RFRA provides, as one avenue for relief, a right to seek damages against Government employees. A damages remedy is not just \"appropriate\" relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations. For certain injuries, such as respondents’ wasted plane tickets, effective relief consists of damages, not an injunction. See, e.g., DeMarco v. Davis, 914 F. 3d 383, 390 (CA5 2019) (destruction of religious property); Yang v. Sturner, 728 F. Supp. 845 (RI 1990), opinion withdrawn 750 F. Supp. 558 (RI 1990) (autopsy of son that violated Hmong beliefs). Given the textual cues just noted, it would be odd to construe RFRA in a manner that prevents courts from awarding such relief. Had Congress wished to limit the remedy to that degree, it knew how to do so. See, e.g., 29 U. S. C. §1132(a)(3) (providing for \"appropriate equitable relief\"); 42 U. S. C. §2000e–5(g)(1) (providing for \"equitable relief as the court deems appropriate\"); 15 U. S. C. §78u(d)(5) (providing for \"any equitable relief that may be appropriate or necessary\").* Our opinion in Sossamon does not change this analysis. Sossamon held that a State’s acceptance of federal funding did not waive sovereign immunity to suits for damages under a related statute—the Religious Land Use and Institutionalized Persons Act of 2000—which also permits \"‘appropriate relief.’\" 563 U. S., at 280, 282. The obvious difference is that this case features a suit against individuals, who do not enjoy sovereign immunity. The Government also posits that we should be wary of damages against government officials because these awards could raise separation-of-powers concerns. But this exact remedy has coexisted with our constitutional system since the dawn of the Republic. To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so. But there are no constitutional reasons why we must do so in its stead. To the extent the Government asks us to create a new policy-based presumption against damages against individual officials, we are not at liberty to do so. Congress is best suited to create such a policy. Our task is simply to interpret the law as an ordinary person would. Although background presumptions can inform the understanding of a word or phrase, those presumptions must exist at the time of enactment. We cannot manufacture a new presumption now and retroactively impose it on a Congress that acted 27 years ago. We conclude that RFRA’s express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities. The judgment of the United States Court of Appeals for the Second Circuit is affirmed."},
{"docket_number": "19-715", "syllabus": "In April 2019, three committees of the U. S. House of Representatives issued four subpoenas seeking information about the finances of President Donald J. Trump, his children, and affiliated businesses. The House Committee on Financial Services issued a subpoena to Deutsche Bank seeking any document related to account activity, due diligence, foreign transactions, business statements, debt schedules, statements of net worth, tax returns, and suspicious activity identified by Deutsche Bank. It issued a second subpoena to Capital One for similar information. The Permanent Select Committee on Intelligence issued a subpoena to Deutsche Bank that mirrored the subpoena issued by the Financial Services Committee. And the House Committee on Oversight and Reform issued a subpoena to the President’s personal accounting firm, Mazars USA, LLP, demanding information related to the President and several affiliated businesses. Although each of the committees sought overlapping sets of financial documents, each supplied different justifications for the requests, explaining that the information would help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections. Petitioners—the President in his personal capacity, along with his children and affiliated businesses—contested the subpoena issued by the Oversight Committee in the District Court for the District of Columbia (Mazars, No. 19–715) and the subpoenas issued by the Financial Services and Intelligence Committees in the Southern District of New York (Deutsche Bank, No. 19–760). In both cases, petitioners contended that the subpoenas lacked a legitimate legislative purpose and violated the separation of powers. The President did not, however, argue that any of the requested records were protected by executive privilege. In Mazars, the District Court granted judgment for the House and the D. C. Circuit affirmed, finding that the subpoena issued by the Oversight Committee served a valid legislative purpose because the requested information was relevant to reforming financial disclosure requirements for Presidents and presidential candidates. In Deutsche Bank, the District Court denied a preliminary injunction and the Second Circuit affirmed in substantial part, holding that the Intelligence Committee properly issued its subpoena to Deutsche Bank as part of an investigation into alleged foreign influence in the U. S. political process, which could inform legislation to strengthen national security and combat foreign meddling. The court also concluded that the subpoenas issued by the Financial Services Committee to Deutsche Bank and Capital One were adequately related to potential legislation on money laundering, terrorist financing, and the global movement of illicit funds through the real estate market. Held: The courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information. Pp. 7–20. (a) Historically, disputes over congressional demands for presidential documents have been resolved by the political branches through negotiation and compromise without involving this Court. The Court recognizes that this dispute is the first of its kind to reach the Court; that such disputes can raise important issues concerning relations between the branches; that similar disputes recur on a regular basis, including in the context of deeply partisan controversy; and that Congress and the Executive have nonetheless managed for over two centuries to resolve these disputes among themselves without Supreme Court guidance. Such longstanding practice \"‘is a consideration of great weight’ \" in cases concerning \"the allocation of power between [the] two elected branches of Government,\" and it imposes on the Court a duty of care to ensure that it does not needlessly disturb \"the compromises and working arrangements\" reached by those branches. NLRB v. Noel Canning, 573 U. S. 513, 524–526 (quoting The Pocket Veto Case, 279 U. S. 655, 689). Pp. 7–11. (b) Each House of Congress has the power \"to secure needed information\" in order to legislate. McGrain v. Daugherty, 273 U. S. 135, 161. This power is \"indispensable\" because, without information, Congress would be unable to legislate wisely or effectively. Watkins v. United States, 354 U. S. 178, 215. Because this power is \"justified solely as an adjunct to the legislative process,\" it is subject to several limitations. Id., at 197. Most importantly, a congressional subpoena is valid only if it is \"related to, and in furtherance of, a legitimate task of the Congress.\" Id., at 187. The subpoena must serve a \"valid legislative purpose.\" Quinn v. United States, 349 U. S. 155, 161. Furthermore, Congress may not issue a subpoena for the purpose of \"law enforcement,\" because that power is assigned to the Executive and the Judiciary. Ibid. Finally, recipients of congressional subpoenas retain their constitutional rights and various privileges throughout the course of an investigation. Pp. 11–12. (c) The President contends, as does the Solicitor General on behalf of the United States, that congressional subpoenas for the President’s information should be evaluated under the standards set forth in United States v. Nixon, 418 U. S. 683, and Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725, which would require the House to show that the requested information satisfies a \"demonstrated, specific need,\" 418 U. S., at 713, and is \"demonstrably critical\" to a legislative purpose, 498 F. 2d, at 731. Nixon and Senate Select Committee, however, involved subpoenas for communications between the President and his close advisers, over which the President asserted executive privilege. Because executive privilege safeguards the public interest in candid, confidential deliberations within the Executive Branch, information subject to the privilege deserves \"the greatest protection consistent with the fair administration of justice.\" 418 U. S., at 715. That protection should not be transplanted root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations. The standards proposed by the President and the Solicitor General— if applied outside the context of privileged information—would risk seriously impeding Congress in carrying out its responsibilities, giving short shrift to its important interests in conducting inquiries to obtain information needed to legislate effectively. Pp. 12–14. (d) The approach proposed by the House, which relies on precedents that did not involve the President’s papers, fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information. The House’s approach would leave essentially no limits on the congressional power to subpoena the President’s personal records. A limitless subpoena power could transform the established practice of the political branches and allow Congress to aggrandize itself at the President’s expense. These separation of powers concerns are unmistakably implicated by the subpoenas here, which represent not a run-of-the-mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved. The interbranch conflict does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity. Nor are separation of powers concerns less palpable because the subpoenas were issued to third parties. Pp. 14–18. (e) Neither side identifies an approach that adequately accounts for these weighty separation of powers concerns. A balanced approach is necessary, one that takes a \"considerable impression\" from \"the practice of the government,\" McCulloch v. Maryland, 4 Wheat. 316, 401, and \"resist[s]\" the \"pressure inherent within each of the separate Branches to exceed the outer limits of its power,\" INS v. Chadha, 462 U. S. 919, 951. In assessing whether a subpoena directed at the President’s personal information is \"related to, and in furtherance of, a legitimate task of the Congress,\" Watkins, 354 U. S., at 187, courts must take adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the unique position of the President. Several special considerations inform this analysis. First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. \" ‘[O]ccasion[s] for constitutional confrontation between the two branches’ should be avoided whenever possible.\" Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 389–390 (quoting Nixon, 418 U. S., at 692). Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. The specificity of the subpoena’s request \"serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.\" Cheney, 542 U. S., at 387. Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial, the better. That is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency. Fourth, courts should assess the burdens imposed on the President by a subpoena, particularly because they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage. Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list. Pp. 18–20.", "opinion": "CHIEF JUSTICE ROBERTS delivered the opinion of the Court. Over the course of five days in April 2019, three committees of the U. S. House of Representatives issued four subpoenas seeking information about the finances of President Donald J. Trump, his children, and affiliated businesses. We have held that the House has authority under the Constitution to issue subpoenas to assist it in carrying out its legislative responsibilities. The House asserts that the financial information sought here—encompassing a decade’s worth of transactions by the President and his family—will help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections. The President contends that the House lacked a valid legislative aim and instead sought these records to harass him, expose personal matters, and conduct law enforcement activities beyond its authority. The question presented is whether the subpoenas exceed the authority of the House under the Constitution. We have never addressed a congressional subpoena for the President’s information. Two hundred years ago, it was established that Presidents may be subpoenaed during a federal criminal proceeding, United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, Cir. J.), and earlier today we extended that ruling to state criminal proceedings, Trump v. Vance, ante, p. ___. Nearly fifty years ago, we held that a federal prosecutor could obtain information from a President despite assertions of executive privilege, United States v. Nixon, 418 U. S. 683 (1974), and more recently we ruled that a private litigant could subject a President to a damages suit and appropriate discovery obligations in federal court, Clinton v. Jones, 520 U. S. 681 (1997). This case is different. Here the President’s information is sought not by prosecutors or private parties in connection with a particular judicial proceeding, but by committees of Congress that have set forth broad legislative objectives. Congress and the President—the two political branches established by the Constitution—have an ongoing relationship that the Framers intended to feature both rivalry and reciprocity. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring). That distinctive aspect necessarily informs our analysis of the question before us. I A Each of the three committees sought overlapping sets of financial documents, but each supplied different justifications for the requests. The House Committee on Financial Services issued two subpoenas, both on April 11, 2019. App. 128, 154, 226. The first, issued to Deutsche Bank, seeks the financial information of the President, his children, their immediate family members, and several affiliated business entities. Specifically, the subpoena seeks any document related to account activity, due diligence, foreign transactions, business statements, debt schedules, statements of net worth, tax returns, and suspicious activity identified by Deutsche Bank. The second, issued to Capital One, demands similar financial information with respect to more than a dozen business entities associated with the President. The Deutsche Bank subpoena requests materials from \"2010 through the present,\" and the Capital One subpoena covers \"2016 through the present,\" but both subpoenas impose no time limitations for certain documents, such as those connected to account openings and due diligence. Id., at 128, 155. According to the House, the Financial Services Committee issued these subpoenas pursuant to House Resolution 206, which called for \"efforts to close loopholes that allow corruption, terrorism, and money laundering to infiltrate our country’s financial system.\" H. Res. 206, 116th Cong., 1st Sess., 5 (Mar. 13, 2019). Such loopholes, the resolution explained, had allowed \"illicit money, including from Russian oligarchs,\" to flow into the United States through \"anonymous shell companies\" using investments such as \"luxury high-end real estate.\" Id., at 3. The House also invokes the oversight plan of the Financial Services Committee, which stated that the Committee intends to review banking regulation and \"examine the implementation, effectiveness, and enforcement\" of laws designed to prevent money laundering and the financing of terrorism. H. R. Rep. No. 116–40, p. 84 (2019). The plan further provided that the Committee would \"consider proposals to prevent the abuse of the financial system\" and \"address any vulnerabilities identified\" in the real estate market. Id., at 85. On the same day as the Financial Services Committee, the Permanent Select Committee on Intelligence issued an identical subpoena to Deutsche Bank—albeit for different reasons. According to the House, the Intelligence Committee subpoenaed Deutsche Bank as part of an investigation into foreign efforts to undermine the U. S. political process. Committee Chairman Adam Schiff had described that investigation in a previous statement, explaining that the Committee was examining alleged attempts by Russia to influence the 2016 election; potential links between Russia and the President’s campaign; and whether the President and his associates had been compromised by foreign actors or interests. Press Release, House Permanent Select Committee on Intelligence, Chairman Schiff Statement on House Intelligence Committee Investigation (Feb. 6, 2019). Chairman Schiff added that the Committee planned \"to develop legislation and policy reforms to ensure the U. S. government is better positioned to counter future efforts to undermine our political process and national security.\" Ibid. Four days after the Financial Services and Intelligence Committees, the House Committee on Oversight and Reform issued another subpoena, this time to the President’s personal accounting firm, Mazars USA, LLP. The subpoena demanded information related to the President and several affiliated business entities from 2011 through 2018, including statements of financial condition, independent auditors’ reports, financial reports, underlying source documents, and communications between Mazars and the President or his businesses. The subpoena also requested all engagement agreements and contracts \"[w]ithout regard to time.\" App. to Pet. for Cert. in 19–715, p. 230. Chairman Elijah Cummings explained the basis for the subpoena in a memorandum to the Oversight Committee. According to the chairman, recent testimony by the President’s former personal attorney Michael Cohen, along with several documents prepared by Mazars and supplied by Cohen, raised questions about whether the President had accurately represented his financial affairs. Chairman Cummings asserted that the Committee had \"full authority to investigate\" whether the President: (1) \"may have engaged in illegal conduct before and during his tenure in office,\" (2) \"has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions,\" (3) \"is complying with the Emoluments Clauses of the Constitution,\" and (4) \"has accurately reported his finances to the Office of Government Ethics and other federal entities.\" App. in No. 19–5142 (CADC), p. 107. \"The Committee’s interest in these matters,\" Chairman Cummings concluded, \"informs its review of multiple laws and legislative proposals under our jurisdiction.\" Ibid. B Petitioners—the President in his personal capacity, along with his children and affiliated businesses—filed two suits challenging the subpoenas. They contested the subpoena issued by the Oversight Committee in the District Court for the District of Columbia (Mazars, No. 19–715), and the subpoenas issued by the Financial Services and Intelligence Committees in the Southern District of New York (Deutsche Bank, No. 19–760). In both cases, petitioners contended that the subpoenas lacked a legitimate legislative purpose and violated the separation of powers. The President did not, however, resist the subpoenas by arguing that any of the requested records were protected by executive privilege. For relief, petitioners asked for declaratory judgments and injunctions preventing Mazars and the banks from complying with the subpoenas. Although named as defendants, Mazars and the banks took no positions on the legal issues in these cases, and the House committees intervened to defend the subpoenas. Petitioners’ challenges failed. In Mazars, the District Court granted judgment for the House, 380 F. Supp. 3d 76 (DC 2019), and the D. C. Circuit affirmed, 940 F. 3d 710 (2019). In upholding the subpoena issued by the Oversight Committee to Mazars, the Court of Appeals found that the subpoena served a \"valid legislative purpose\" because the requested information was relevant to reforming financial disclosure requirements for Presidents and presidential candidates. Id., at 726–742 (internal quotation marks omitted). Judge Rao dissented. As she saw it, the \"gravamen\" of the subpoena was investigating alleged illegal conduct by the President, and the House must pursue such wrongdoing through its impeachment powers, not its legislative powers. Id., at 773–774. Otherwise, the House could become a \"roving inquisition over a co-equal branch of government.\" Id., at 748. The D. C. Circuit denied rehearing en banc over several more dissents. 941 F. 3d 1180, 1180–1182 (2019). In Deutsche Bank, the District Court denied a preliminary injunction, 2019 WL 2204898 (SDNY, May 22, 2019), and the Second Circuit affirmed \"in substantial part,\" 943 F. 3d 627, 676 (2019). While acknowledging that the subpoenas are \"surely broad in scope,\" the Court of Appeals held that the Intelligence Committee properly issued its subpoena to Deutsche Bank as part of an investigation into alleged foreign influence over petitioners and Russian interference with the U. S. political process. Id., at 650, 658– 659. That investigation, the court concluded, could inform legislation to combat foreign meddling and strengthen national security. Id., at 658–659, and n. 59. As to the subpoenas issued by the Financial Services Committee to Deutsche Bank and Capital One, the Court of Appeals concluded that they were adequately related to potential legislation on money laundering, terrorist financing, and the global movement of illicit funds through the real estate market. Id., at 656–659. Rejecting the contention that the subpoenas improperly targeted the President, the court explained in part that the President’s financial dealings with Deutsche Bank made it \"appropriate\" for the House to use him as a \"case study\" to determine \"whether new legislation is needed.\" Id., at 662–663, n. 67.1 Judge Livingston dissented, seeing no \"clear reason why a congressional investigation aimed generally at closing regulatory loopholes in the banking system need focus on over a decade of financial information regarding this President, his family, and his business affairs.\" Id., at 687. We granted certiorari in both cases and stayed the judgments below pending our decision. 589 U. S. ___ (2019). II A The question presented is whether the subpoenas exceed the authority of the House under the Constitution. Historically, disputes over congressional demands for presidential documents have not ended up in court. Instead, they have been hashed out in the \"hurly-burly, the give-and-take of the political process between the legislative and the executive.\" Hearings on S. 2170 et al. before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 94th Cong., 1st Sess., 87 (1975) (A. Scalia, Assistant Attorney General, Office of Legal Counsel). That practice began with George Washington and the early Congress. In 1792, a House committee requested Executive Branch documents pertaining to General St. Clair’s campaign against the Indians in the Northwest Territory, which had concluded in an utter rout of federal forces when they were caught by surprise near the present-day border between Ohio and Indiana. See T. Taylor, Grand Inquest: The Story of Congressional Investigations 19–23 (1955). Since this was the first such request from Congress, President Washington called a Cabinet meeting, wishing to take care that his response \"be rightly conducted\" because it could \"become a precedent.\" 1 Writings of Thomas Jefferson 189 (P. Ford ed. 1892). The meeting, attended by the likes of Alexander Hamilton, Thomas Jefferson, Edmund Randolph, and Henry Knox, ended with the Cabinet of \"one mind\": The House had authority to \"institute inquiries\" and \"call for papers\" but the President could \"exercise a discretion\" over disclosures, \"communicat[ing] such papers as the public good would permit\" and \"refus[ing]\" the rest. Id., at 189–190. President Washington then dispatched Jefferson to speak to individual congressmen and \"bring them by persuasion into the right channel.\" Id., at 190. The discussions were apparently fruitful, as the House later narrowed its request and the documents were supplied without recourse to the courts. See 3 Annals of Cong. 536 (1792); Taylor, supra, at 24. Jefferson, once he became President, followed Washington’s precedent. In early 1807, after Jefferson had disclosed that \"sundry persons\" were conspiring to invade Spanish territory in North America with a private army, 16 Annals of Cong. 686–687, the House requested that the President produce any information in his possession touching on the conspiracy (except for information that would harm the public interest), id., at 336, 345, 359. Jefferson chose not to divulge the entire \"voluminous\" correspondence on the subject, explaining that much of it was \"private\" or mere \"rumors\" and \"neither safety nor justice\" permitted him to \"expos[e] names\" apart from identifying the conspiracy’s \"principal actor\": Aaron Burr. Id., at 39–40. Instead of the entire correspondence, Jefferson sent Congress particular documents and a special message summarizing the conspiracy. Id., at 39–43; see generally Vance, ante, at 3–4. Neither Congress nor the President asked the Judiciary to intervene.2 Ever since, congressional demands for the President’s information have been resolved by the political branches without involving this Court. The Reagan and Clinton presidencies provide two modern examples: During the Reagan administration, a House subcommittee subpoenaed all documents related to the Department of the Interior’s decision whether to designate Canada a reciprocal country for purposes of the Mineral Lands Leasing Act. President Reagan directed that certain documents be withheld because they implicated his confidential relationship with subordinates. While withholding those documents, the administration made \"repeated efforts\" at accommodation through limited disclosures and testimony over a period of several months. 6 Op. of Office of Legal Counsel 751, 780 (1982). Unsatisfied, the subcommittee and its parent committee eventually voted to hold the Secretary of the Interior in contempt, and an innovative compromise soon followed: All documents were made available, but only for one day with no photocopying, minimal notetaking, and no participation by non-Members of Congress. Id., at 780–781; see H. R. Rep. No. 97–898, pp. 3–8 (1982). In 1995, a Senate committee subpoenaed notes taken by a White House attorney at a meeting with President Clinton’s personal lawyers concerning the Whitewater controversy. The President resisted the subpoena on the ground that the notes were protected by attorney-client privilege, leading to \"long and protracted\" negotiations and a Senate threat to seek judicial enforcement of the subpoena. S. Rep. No. 104–204, pp. 16–17 (1996). Eventually the parties reached an agreement, whereby President Clinton avoided the threatened suit, agreed to turn over the notes, and obtained the Senate’s concession that he had not waived any privileges. Ibid.; see L. Fisher, Congressional Research Service, Congressional Investigations: Subpoenas and Contempt Power 16–18 (2003). Congress and the President maintained this tradition of negotiation and compromise—without the involvement of this Court—until the present dispute. Indeed, from President Washington until now, we have never considered a dispute over a congressional subpoena for the President’s records. And, according to the parties, the appellate courts have addressed such a subpoena only once, when a Senate committee subpoenaed President Nixon during the Watergate scandal. See infra, at 13 (discussing Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725 (CADC 1974) (en banc)). In that case, the court refused to enforce the subpoena, and the Senate did not seek review by this Court. This dispute therefore represents a significant departure from historical practice. Although the parties agree that this particular controversy is justiciable, we recognize that it is the first of its kind to reach this Court; that disputes of this sort can raise important issues concerning relations between the branches; that related disputes involving congressional efforts to seek official Executive Branch information recur on a regular basis, including in the context of deeply partisan controversy; and that Congress and the Executive have nonetheless managed for over two centuries to resolve such disputes among themselves without the benefit of guidance from us. Such longstanding practice \" ‘is a consideration of great weight’\" in cases concerning \"the allocation of power between [the] two elected branches of Government,\" and it imposes on us a duty of care to ensure that we not needlessly disturb \"the compromises and working arrangements that [those] branches . . . themselves have reached.\" NLRB v. Noel Canning, 573 U. S. 513, 524–526 (2014) (quoting The Pocket Veto Case, 279 U. S. 655, 689 (1929)). With that in mind, we turn to the question presented. B Congress has no enumerated constitutional power to conduct investigations or issue subpoenas, but we have held that each House has power \"to secure needed information\" in order to legislate. McGrain v. Daugherty, 273 U. S. 135, 161 (1927). This \"power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.\" Id., at 174. Without information, Congress would be shooting in the dark, unable to legislate \"wisely or effectively.\" Id., at 175. The congressional power to obtain information is \"broad\" and \"indispensable.\" Watkins v. United States, 354 U. S. 178, 187, 215 (1957). It encompasses inquiries into the administration of existing laws, studies of proposed laws, and \"surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.\" Id., at 187. Because this power is \"justified solely as an adjunct to the legislative process,\" it is subject to several limitations. Id., at 197. Most importantly, a congressional subpoena is valid only if it is \"related to, and in furtherance of, a legitimate task of the Congress.\" Id., at 187. The subpoena must serve a \"valid legislative purpose,\" Quinn v. United States, 349 U. S. 155, 161 (1955); it must \"concern[] a subject on which legislation ‘could be had,’ \" Eastland v. United States Servicemen’s Fund, 421 U. S. 491, 506 (1975) (quoting McGrain, 273 U. S., at 177). Furthermore, Congress may not issue a subpoena for the purpose of \"law enforcement,\" because \"those powers are assigned under our Constitution to the Executive and the Judiciary.\" Quinn, 349 U. S., at 161. Thus Congress may not use subpoenas to \"try\" someone \"before [a] committee for any crime or wrongdoing.\" McGrain, 273 U. S., at 179. Congress has no \"‘general’ power to inquire into private affairs and compel disclosures,\" id., at 173–174, and \"there is no congressional power to expose for the sake of exposure,\" Watkins, 354 U. S., at 200. \"Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.\" Id., at 187. Finally, recipients of legislative subpoenas retain their constitutional rights throughout the course of an investigation. See id., at 188, 198. And recipients have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorneyclient communications and governmental communications protected by executive privilege. See, e.g., Congressional Research Service, supra, at 16–18 (attorney-client privilege); Senate Select Committee, 498 F. 2d, at 727, 730–731 (executive privilege). C The President contends, as does the Solicitor General appearing on behalf of the United States, that the usual rules for congressional subpoenas do not govern here because the President’s papers are at issue. They argue for a more demanding standard based in large part on cases involving the Nixon tapes—recordings of conversations between President Nixon and close advisers discussing the break-in at the Democratic National Committee’s headquarters at the Watergate complex. The tapes were subpoenaed by a Senate committee and the Special Prosecutor investigating the break-in, prompting President Nixon to invoke executive privilege and leading to two cases addressing the showing necessary to require the President to comply with the subpoenas. See Nixon, 418 U. S. 683; Senate Select Committee, 498 F. 2d 725. Those cases, the President and the Solicitor General now contend, establish the standard that should govern the House subpoenas here. Quoting Nixon, the President asserts that the House must establish a \"demonstrated, specific need\" for the financial information, just as the Watergate special prosecutor was required to do in order to obtain the tapes. 418 U. S., at 713. And drawing on Senate Select Committee—the D. C. Circuit case refusing to enforce the Senate subpoena for the tapes—the President and the Solicitor General argue that the House must show that the financial information is \"demonstrably critical\" to its legislative purpose. 498 F. 2d, at 731. We disagree that these demanding standards apply here. Unlike the cases before us, Nixon and Senate Select Committee involved Oval Office communications over which the President asserted executive privilege. That privilege safeguards the public interest in candid, confidential deliberations within the Executive Branch; it is \"fundamental to the operation of Government.\" Nixon, 418 U. S., at 708. As a result, information subject to executive privilege deserves \"the greatest protection consistent with the fair administration of justice.\" Id., at 715. We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations. The standards proposed by the President and the Solicitor General—if applied outside the context of privileged information—would risk seriously impeding Congress in carrying out its responsibilities. The President and the Solicitor General would apply the same exacting standards to all subpoenas for the President’s information, without recognizing distinctions between privileged and nonprivileged information, between official and personal information, or between various legislative objectives. Such a categorical approach would represent a significant departure from the longstanding way of doing business between the branches, giving short shrift to Congress’s important interests in conducting inquiries to obtain the information it needs to legislate effectively. Confounding the legislature in that effort would be contrary to the principle that: \"It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served.\" United States v. Rumely, 345 U. S. 41, 43 (1953) (internal quotation marks omitted). Legislative inquiries might involve the President in appropriate cases; as noted, Congress’s responsibilities extend to \"every affair of government.\" Ibid. (internal quotation marks omitted). Because the President’s approach does not take adequate account of these significant congressional interests, we do not adopt it. D The House meanwhile would have us ignore that these suits involve the President. Invoking our precedents concerning investigations that did not target the President’s papers, the House urges us to uphold its subpoenas because they \"relate[] to a valid legislative purpose\" or \"concern[] a subject on which legislation could be had.\" Brief for Respondent 46 (quoting Barenblatt v. United States, 360 U. S. 109, 127 (1959), and Eastland, 421 U. S., at 506). That approach is appropriate, the House argues, because the cases before us are not \"momentous separation-of-powers disputes.\" Brief for Respondent 1. Largely following the House’s lead, the courts below treated these cases much like any other, applying precedents that do not involve the President’s papers. See 943 F. 3d, at 656–670; 940 F. 3d, at 724–742. The Second Circuit concluded that \"this case does not concern separation of powers\" because the House seeks personal documents and the President sued in his personal capacity. 943 F. 3d, at 669. The D. C. Circuit, for its part, recognized that \"separation-of-powers concerns still linger in the air,\" and therefore it did not afford deference to the House. 940 F. 3d, at 725–726. But, because the House sought only personal documents, the court concluded that the case \"present[ed] no direct interbranch dispute.\" Ibid. The House’s approach fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information. Congress and the President have an ongoing institutional relationship as the \"opposite and rival\" political branches established by the Constitution. The Federalist No. 51, at 349. As a result, congressional subpoenas directed at the President differ markedly from congressional subpoenas we have previously reviewed, e.g., Barenblatt, 360 U. S., at 127; Eastland, 421 U. S., at 506, and they bear little resemblance to criminal subpoenas issued to the President in the course of a specific investigation, see Vance, ante, p. ___; Nixon, 418 U. S. 683. Unlike those subpoenas, congressional subpoenas for the President’s information unavoidably pit the political branches against one another. Cf. In re Sealed Case, 121 F. 3d 729, 753 (CADC 1997) (\"The President’s ability to withhold information from Congress implicates different constitutional considerations than the President’s ability to withhold evidence in judicial proceedings.\"). Far from accounting for separation of powers concerns, the House’s approach aggravates them by leaving essentially no limits on the congressional power to subpoena the President’s personal records. Any personal paper possessed by a President could potentially \"relate to\" a conceivable subject of legislation, for Congress has broad legislative powers that touch a vast number of subjects. Brief for Respondent 46. The President’s financial records could relate to economic reform, medical records to health reform, school transcripts to education reform, and so on. Indeed, at argument, the House was unable to identify any type of information that lacks some relation to potential legislation. See Tr. of Oral Arg. 52–53, 62–65. Without limits on its subpoena powers, Congress could \"exert an imperious controul\" over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared. The Federalist No. 71, at 484 (A. Hamilton); see id., No. 48, at 332–333 (J. Madison); Bowsher v. Synar, 478 U. S. 714, 721–722, 727 (1986). And a limitless subpoena power would transform the \"established practice\" of the political branches. Noel Canning, 573 U. S., at 524 (internal quotation marks omitted). Instead of negotiating over information requests, Congress could simply walk away from the bargaining table and compel compliance in court. The House and the courts below suggest that these separation of powers concerns are not fully implicated by the particular subpoenas here, but we disagree. We would have to be \"blind\" not to see what \"[a]ll others can see and understand\": that the subpoenas do not represent a run-of-themill legislative effort but rather a clash between rival of government over records of intense political interest for all involved. Rumely, 345 U. S., at 44 (quoting Child Labor Tax Case, 259 U. S. 20, 37 (1922) (Taft, C. J.)). The interbranch conflict here does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity. The President is the only person who alone composes a branch of government. As a result, there is not always a clear line between his personal and official affairs. \"The interest of the man\" is often \"connected with the constitutional rights of the place.\" The Federalist No. 51, at 349. Given the close connection between the Office of the President and its occupant, congressional demands for the President’s papers can implicate the relationship between the branches regardless whether those papers are personal or official. Either way, a demand may aim to harass the President or render him \"complaisan[t] to the humors of the Legislature.\" Id., No. 71, at 483. In fact, a subpoena for personal papers may pose a heightened risk of such impermissible purposes, precisely because of the documents’ personal nature and their less evident connection to a legislative task. No one can say that the controversy here is less significant to the relationship between the branches simply because it involves personal papers. Quite the opposite. That appears to be what makes the matter of such great consequence to the President and Congress. In addition, separation of powers concerns are no less palpable here simply because the subpoenas were issued to third parties. Congressional demands for the President’s information present an interbranch conflict no matter where the information is held—it is, after all, the President’s information. Were it otherwise, Congress could sidestep constitutional requirements any time a President’s information is entrusted to a third party—as occurs with rapidly increasing frequency. Cf. Carpenter v. United States, 585 U. S. ___, ___, ___ (2018) (slip op., at 15, 17). Indeed, Congress could declare open season on the President’s information held by schools, archives, internet service providers, e-mail clients, and financial institutions. The Constitution does not tolerate such ready evasion; it \"deals with substance, not shadows.\" Cummings v. Missouri, 4 Wall. 277, 325 (1867). E Congressional subpoenas for the President’s personal information implicate weighty concerns regarding the separation of powers. Neither side, however, identifies an approach that accounts for these concerns. For more than two centuries, the political branches have resolved information disputes using the wide variety of means that the Constitution puts at their disposal. The nature of such interactions would be transformed by judicial enforcement of either of the approaches suggested by the parties, eroding a \"[d]eeply embedded traditional way[] of conducting government.\" Youngstown Sheet & Tube Co., 343 U. S., at 610 (Frankfurter, J., concurring). A balanced approach is necessary, one that takes a \"considerable impression\" from \"the practice of the government,\" McCulloch v. Maryland, 4 Wheat. 316, 401 (1819); see Noel Canning, 573 U. S., at 524–526, and \"resist[s]\" the \"pressure inherent within each of the separate Branches to exceed the outer limits of its power,\" INS v. Chadha, 462 U. S. 919, 951 (1983). We therefore conclude that, in assessing whether a subpoena directed at the President’s personal information is \"related to, and in furtherance of, a legitimate task of the Congress,\" Watkins, 354 U. S., at 187, courts must perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the \"unique position\" of the President, Clinton, 520 U. S., at 698 (internal quotation marks omitted). Several special considerations inform this analysis. First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. \"‘[O]ccasion[s] for constitutional confrontation between the two branches’ should be avoided whenever possible.\" Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 389–390 (2004) (quoting Nixon, 418 U. S., at 692). Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. The President’s unique constitutional position means that Congress may not look to him as a \"case study\" for general legislation. Cf. 943 F. 3d, at 662–663, n. 67. Unlike in criminal proceedings, where \"[t]he very integrity of the judicial system\" would be undermined without \"full disclosure of all the facts,\" Nixon, 418 U. S., at 709, efforts to craft legislation involve predictive policy judgments that are \"not hamper[ed] . . . in quite the same way\" when every scrap of potentially relevant evidence is not available, Cheney, 542 U. S., at 384; see Senate Select Committee, 498 F. 2d, at 732. While we certainly recognize Congress’s important interests in obtaining information through appropriate inquiries, those interests are not sufficiently powerful to justify access to the President’s personal papers when other sources could provide Congress the information it needs. Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. The specificity of the subpoena’s request \"serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.\" Cheney, 542 U. S., at 387. Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress’s legislative purpose, the better. See Watkins, 354 U. S., at 201, 205 (preferring such evidence over \"vague\" and \"loosely worded\" evidence of Congress’s purpose). That is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency. In such cases, it is \"impossible\" to conclude that a subpoena is designed to advance a valid legislative purpose unless Congress adequately identifies its aims and explains why the President’s information will advance its consideration of the possible legislation. Id., at 205–206, 214–215. Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena. We have held that burdens on the President’s time and attention stemming from judicial process and litigation, without more, generally do not cross constitutional lines. See Vance, ante, at 12–14; Clinton, 520 U. S., at 704–705. But burdens imposed by a congressional subpoena should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage. Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list. When Congress seeks information \"needed for intelligent legislative action,\" it \"unquestionably\" remains \"the duty of all citizens to cooperate.\" Watkins, 354 U. S., at 187 (emphasis added). Congressional subpoenas for information from the President, however, implicate special concerns regarding the separation of powers. The courts below did not take adequate account of those concerns. The judgments of the Courts of Appeals for the D. C. Circuit and the Second Circuit are vacated, and the cases are remanded for further proceedings consistent with this opinion."},
{"docket_number": "19-635", "syllabus": "In 2019, the New York County District Attorney’s Office—acting on behalf of a grand jury—served a subpoena duces tecum on Mazars USA, LLP, the personal accounting firm of President Donald J. Trump, for financial records relating to the President and his businesses. The President, acting in his personal capacity, sued the district attorney and Mazars in Federal District Court to enjoin enforcement of the subpoena, arguing that a sitting President enjoys absolute immunity from state criminal process under Article II and the Supremacy Clause. The District Court dismissed the case under the abstention doctrine of Younger v. Harris, 401 U. S. 37, and, in the alternative, held that the President was not entitled to injunctive relief. The Second Circuit rejected the District Court’s dismissal under Younger but agreed with the court’s denial of injunctive relief, concluding that presidential immunity did not bar enforcement of the subpoena and rejecting the argument of the United States as amicus curiae that a state grand jury subpoena seeking the President’s documents must satisfy a heightened showing of need. Held: Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President. Pp. 3–22. (a) In 1807, John Marshall, presiding as Circuit Justice for Virginia over the treason trial of Aaron Burr, granted Burr’s motion for a subpoena duces tecum directed at President Jefferson. In rejecting the prosecution’s argument that a President was not subject to such a subpoena, Marshall held that a President does not \"stand exempt\" from the Sixth Amendment’s guarantee that the accused have compulsory process for obtaining witnesses for their defense. Burr, 25 F. Cas. 30, 33–34. The sole argument for an exemption was that a President’s \"duties as chief magistrate demand his whole time for national objects.\" Ibid. But, in Marshall’s assessment, those duties were \"not unremitting,\" ibid., and any conflict could be addressed by the court upon return of the subpoena. Marshall also concluded that the Sixth Amendment’s guarantee extended to the production of papers. \"[T]he propriety of introducing any papers,\" he explained, would \"depend on the character of the paper, not the character of the person who holds it,\" and would have \"due consideration\" upon the return of the subpoena. Id., at 34, 37. Jefferson agreed to furnish whatever justice required, subject to the prerogative to decide whether particular executive communications should be withheld. In the two centuries since Burr, successive Presidents from Monroe to Clinton have accepted Marshall’s ruling that the Chief Executive is subject to subpoena and have uniformly agreed to testify when called in criminal proceedings. In 1974, the question whether to compel the disclosure of official communications over the President’s objection came to a head when the Watergate Special Prosecutor secured a subpoena duces tecum directing President Nixon to produce, among other things, tape recordings of Oval Office meetings. This Court rejected Nixon’s claim of an absolute privilege of confidentiality for all presidential communications. Recognizing that \"compulsory process\" was imperative for both the prosecution and the defense, the Court held that the President’s \"generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.\" United States v. Nixon, 418 U. S. 683, 713. President Nixon dutifully released the tapes. Pp. 3–10. (b) This history all involved federal criminal proceedings. Here, the President claims that the Supremacy Clause gives a sitting President absolute immunity from state criminal subpoenas because compliance with such subpoenas would categorically impair the performance of his Article II functions. The Solicitor General, arguing on behalf of the United States, claims that a state grand jury subpoena for a sitting President’s personal records must, at the very least, meet a heightened standard of need. Pp. 10–22. (1) The President’s unique duties as head of the Executive Branch come with protections that safeguard his ability to perform his vital functions. The Constitution also guarantees \"the entire independence of the General Government from any control by the respective States.\" Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232 U. S. 516, 521. Marshall’s ruling in Burr, entrenched by 200 years of practice and this Court’s decision in Nixon, confirms that federal criminal subpoenas do not \"rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions.\" Clinton v. Jones, 520 U. S. 681, 702–703. But the President claims that state criminal subpoenas necessarily pose a unique threat of impairment and thus require absolute immunity. His categorical argument focuses on three burdens: diversion, stigma, and harassment. Pp. 10–17. (i) The President contends that complying with state criminal subpoenas would necessarily distract the Chief Executive from his duties. He grounds that concern on Nixon v. Fitzgerald, which recognized a President’s \"absolute immunity from damages liability predicated on his official acts.\" 457 U. S. 731, 749. But, contrary to the President’s suggestion, that case did not hold that distraction was sufficient to confer absolute immunity. Indeed, the Court expressly rejected immunity based on distraction alone 15 years later in Clinton v. Jones, when President Clinton sought absolute immunity from civil liability for private acts. As the Court explained, Fitzgerald’s \"dominant concern\" was not mere distraction but the distortion of the Executive’s \"decisionmaking process.\" 520 U. S., at 694, n. 19. The prospect that a President may become \"preoccupied by pending litigation\" did not ordinarily implicate constitutional concerns. Id., at 705, n. 40. Two centuries of experience likewise confirm that a properly tailored criminal subpoena will not normally hamper the performance of a President’s constitutional duties. The President claims this case is different. He believes that he is under investigation and argues that the toll will necessarily be heavier in that circumstance. But the President is not seeking immunity from the diversion occasioned by the prospect of future criminal liability. He concedes that he may be investigated while in office. His objection is instead limited to the additional distraction caused by the subpoena itself. That argument, however, runs up against the 200 years of precedent establishing that Presidents, and their official communications, are subject to judicial process, see Burr, 25 F. Cas., at 34, even when the President is under investigation, see Nixon, 418 U. S., at 706. Pp. 12–14. (ii) The President next claims that the stigma of being subpoenaed will undermine his leadership at home and abroad. But even if a tarnished reputation were a cognizable impairment, there is nothing inherently stigmatizing about a President performing \"the citizen’s normal duty of . . . furnishing information relevant\" to a criminal investigation. Branzburg v. Hayes, 408 U. S. 665, 691. Nor can the risk of association with persons or activities under criminal investigation absolve a President of such an important public duty. The consequences for a President’s public standing will likely increase if he is the one under investigation, but the President concedes that such investigations are permitted under Article II and the Supremacy Clause. And the receipt of a subpoena would not seem to categorically magnify the harm to the President’s reputation. Additionally, in the grand jury context longstanding secrecy rules aim to prevent the very stigma the President anticipates. Pp. 14–15. (iii) Finally, the President argues that subjecting Presidents to state criminal subpoenas will make them \"easily identifiable target[s]\" for harassment. Fitzgerald, 457 U. S., at 753. The Court rejected a nearly identical argument in Clinton, concluding that the risk posed by harassing civil litigation was not \"serious\" because federal courts have the tools to deter and dismiss vexatious lawsuits. 520 U. S., at 708. Harassing state criminal subpoenas could, under certain circumstances, threaten the independence or effectiveness of the Executive. But here again the law already seeks to protect against such abuse. First, grand juries are prohibited from engaging in \"arbitrary fishing expeditions\" or initiating investigations \"out of malice or an intent to harass,\" United States v. R. Enterprises, Inc., 498 U. S. 292, 299, and federal courts may intervene in state proceedings that are motivated by or conducted in bad faith. Second, because the Supremacy Clause prohibits state judges and prosecutors from interfering with a President’s official duties, any effort to manipulate a President’s policy decisions or to retaliate against a President for official acts through issuance of a subpoena would be an unconstitutional attempt to \"influence\" a superior sovereign \"exempt\" from such obstacles, see McCulloch v. Maryland, 4 Wheat. 316, 417. And federal law allows a President to challenge any such allegedly unconstitutional influence in a federal forum. Pp. 15–17. (2) A state grand jury subpoena seeking a President’s private papers need not satisfy a heightened need standard, for three reasons. First, although a President cannot be treated as an \"ordinary individual\" when executive communications are sought, Burr teaches that, with regard to private papers, a President stands in \"nearly the same situation with any other individual.\" 25 F. Cas., at 191–192. Second, there has been no showing here that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions. Finally, absent a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence. Rejecting a heightened need standard does not leave Presidents without recourse. A President may avail himself of the same protections available to every other citizen, including the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth. When the President invokes such protections, \"[t]he high respect that is owed to the office of the Chief Executive . . . should inform the conduct of the entire proceeding, including the timing and scope of discovery.\" Clinton, 520 U. S., at 707. In addition, a President can raise subpoena-specific constitutional challenges in either a state or a federal forum. As noted above, he can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause. And he can argue that compliance with a particular subpoena would impede his constitutional duties. Pp. 17–21.", "opinion": "CHIEF JUSTICE ROBERTS delivered the opinion of the Court. In our judicial system, \"the public has a right to every man’s evidence.\"1 Since the earliest days of the Republic, \"every man\" has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts. This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable. We granted certiorari to decide whether Article II and the Supremacy Clause categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President. In the summer of 2018, the New York County District Attorney’s Office opened an investigation into what it opaquely describes as \"business transactions involving multiple individuals whose conduct may have violated state law.\" Brief for Respondent Vance 2. A year later, the office—acting on behalf of a grand jury—served a subpoena duces tecum (essentially a request to produce evidence) on Mazars USA, LLP, the personal accounting firm of President Donald J. Trump. The subpoena directed Mazars to produce financial records relating to the President and business organizations affiliated with him, including \"[t]ax returns and related schedules,\" from \"2011 to the present.\" App. to Pet. for Cert. 119a.2 The President, acting in his personal capacity, sued the district attorney and Mazars in Federal District Court to enjoin enforcement of the subpoena. He argued that, under Article II and the Supremacy Clause, a sitting President enjoys absolute immunity from state criminal process. He asked the court to issue a \"declaratory judgment that the subpoena is invalid and unenforceable while the President is in office\" and to permanently enjoin the district attorney \"from taking any action to enforce the subpoena.\" Amended Complaint in No. 1:19–cv–8694 (SDNY, Sept. 25, 2019), p. 19. Mazars, concluding that the dispute was between the President and the district attorney, took no position on the legal issues raised by the President. The District Court abstained from exercising jurisdiction and dismissed the case based on Younger v. Harris, 401 U. S. 37 (1971), which generally precludes federal courts from intervening in ongoing state criminal prosecutions. 395 F. Supp. 3d 283, 290 (SDNY 2019). In an alternative holding, the court ruled that the President was not entitled to injunctive relief. Ibid. The Second Circuit met the District Court halfway. As to the dismissal, the Court of Appeals held that Younger abstention was inappropriate because that doctrine’s core justification—\"preventing friction\" between States and the Federal Government—is diminished when state and federal actors are already in conflict, as the district attorney and the President were. 941 F. 3d 631, 637, 639 (2019). On the merits, the Court of Appeals agreed with the District Court’s denial of a preliminary injunction. Drawing on the 200-year history of Presidents being subject to federal judicial process, the Court of Appeals concluded that \"presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce nonprivileged material, even when the subject matter under investigation pertains to the President.\" Id., at 640. It also rejected the argument raised by the United States as amicus curiae that a state grand jury subpoena must satisfy a heightened showing of need. The court reasoned that the proposed test, derived from cases addressing privileged Executive Branch communications, \"ha[d] little bearing on a subpoena\" seeking \"information relating solely to the President in his private capacity and disconnected from the discharge of his constitutional obligations.\" Id., at 645–646. We granted certiorari. 589 U. S. ___ (2019). II In the summer of 1807, all eyes were on Richmond, Virginia. Aaron Burr, the former Vice President, was on trial for treason.3 Fallen from political grace after his fatal duel with Alexander Hamilton, and with a murder charge pending in New Jersey, Burr followed the path of many downand-out Americans of his day—he headed West in search of new opportunity. But Burr was a man with outsized ambitions. Together with General James Wilkinson, the Governor of the Louisiana Territory, he hatched a plan to establish a new territory in Mexico, then controlled by Spain. Both men anticipated that war between the United States and Spain was imminent, and when it broke out they intended to invade Spanish territory at the head of a private army. But while Burr was rallying allies to his cause, tensions with Spain eased and rumors began to swirl that Burr was conspiring to detach States by the Allegheny Mountains from the Union. Wary of being exposed as the principal coconspirator, Wilkinson took steps to ensure that any blame would fall on Burr. He sent a series of letters to President Jefferson accusing Burr of plotting to attack New Orleans and revolutionize the Louisiana Territory. Jefferson, who despised his former running mate Burr for trying to steal the 1800 presidential election from him, was predisposed to credit Wilkinson’s version of events. The President sent a special message to Congress identifying Burr as the \"prime mover\" in a plot \"against the peace and safety of the Union.\" 16 Annals of Cong. 39–40 (1807). According to Jefferson, Burr contemplated either the \"severance of the Union\" or an attack on Spanish territory. Id., at 41. Jefferson acknowledged that his sources contained a \"mixture of rumors, conjectures, and suspicions\" but, citing Wilkinson’s letters, he assured Congress that Burr’s guilt was \"beyond question.\" Id., at 39–40. The trial that followed was \"the greatest spectacle in the short history of the republic,\" complete with a Founderstudded cast. N. Isenberg, Fallen Founder: The Life of Aaron Burr 351 (2007). People flocked to Richmond to watch, massing in tents and covered wagons along the banks of the James River, nearly doubling the town’s population of 5,000. Burr’s defense team included Edmund Randolph and Luther Martin, both former delegates at the Constitutional Convention and renowned advocates. Chief Justice John Marshall, who had recently squared off with the Jefferson administration in Marbury v. Madison, 1 Cranch 137 (1803), presided as Circuit Justice for Virginia. Meanwhile Jefferson, intent on conviction, orchestrated the prosecution from afar, dedicating Cabinet meetings to the case, peppering the prosecutors with directions, and spending nearly $100,000 from the Treasury on the five-month proceedings. In the lead-up to trial, Burr, taking aim at his accusers, moved for a subpoena duces tecum directed at Jefferson. The draft subpoena required the President to produce an October 21, 1806 letter from Wilkinson and accompanying documents, which Jefferson had referenced in his message to Congress. The prosecution opposed the request, arguing that a President could not be subjected to such a subpoena and that the letter might contain state secrets. Following four days of argument, Marshall announced his ruling to a packed chamber. The President, Marshall declared, does not \"stand exempt from the general provisions of the constitution\" or, in particular, the Sixth Amendment’s guarantee that those accused have compulsory process for obtaining witnesses for their defense. United States v. Burr, 25 F. Cas. 30, 33–34 (No. 14,692d) (CC Va. 1807). At common law the \"single reservation\" to the duty to testify in response to a subpoena was \"the case of the king,\" whose \"dignity\" was seen as \"incompatible\" with appearing \"under the process of the court.\" Id., at 34. But, as Marshall explained, a king is born to power and can \"do no wrong.\" Ibid. The President, by contrast, is \"of the people\" and subject to the law. Ibid. According to Marshall, the sole argument for exempting the President from testimonial obligations was that his \"duties as chief magistrate demand his whole time for national objects.\" Ibid. But, in Marshall’s assessment, those demands were \"not unremitting.\" Ibid. And should the President’s duties preclude his attendance at a particular time and place, a court could work that out upon return of the subpoena. Ibid. Marshall also rejected the prosecution’s argument that the President was immune from a subpoena duces tecum because executive papers might contain state secrets. \"A subpoena duces tecum,\" he said, \"may issue to any person to whom an ordinary subpoena may issue.\" Ibid. As he explained, no \"fair construction\" of the Constitution supported the conclusion that the right \"to compel the attendance of witnesses[] does not extend\" to requiring those witnesses to \"bring[] with them such papers as may be material in the defence.\" Id., at 35. And, as a matter of basic fairness, permitting such information to be withheld would \"tarnish the reputation of the court.\" Id., at 37. As for \"the propriety of introducing any papers,\" that would \"depend on the character of the paper, not on the character of the person who holds it.\" Id., at 34. Marshall acknowledged that the papers sought by Burr could contain information \"the disclosure of which would endanger the public safety,\" but stated that, again, such concerns would have \"due consideration\" upon the return of the subpoena. Id., at 37. While the arguments unfolded, Jefferson, who had received word of the motion, wrote to the prosecutor indicating that he would—subject to the prerogative to decide which executive communications should be withheld—\"furnish on all occasions, whatever the purposes of justice may require.\" Letter from T. Jefferson to G. Hay (June 12, 1807), in 10 Works of Thomas Jefferson 398, n. (P. Ford ed. 1905). His \"personal attendance,\" however, was out of the question, for it \"would leave the nation without\" the \"sole branch which the constitution requires to be always in function.\" Letter from T. Jefferson to G. Hay (June 17, 1807), in id., at 400–401, n. Before Burr received the subpoenaed documents, Marshall rejected the prosecution’s core legal theory for treason and Burr was accordingly acquitted. Jefferson, however, was not done. Committed to salvaging a conviction, he directed the prosecutors to proceed with a misdemeanor (yes, misdemeanor) charge for inciting war against Spain. Burr then renewed his request for Wilkinson’s October 21 letter, which he later received a copy of, and subpoenaed a second letter, dated November 12, 1806, which the prosecutor claimed was privileged. Acknowledging that the President may withhold information to protect public safety, Marshall instructed that Jefferson should \"state the particular reasons\" for withholding the letter. United States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807). The court, paying \"all proper respect\" to those reasons, would then decide whether to compel disclosure. Ibid. But that decision was averted when the misdemeanor trial was cut short after it became clear that the prosecution lacked the evidence to convict. In the two centuries since the Burr trial, successive Presidents have accepted Marshall’s ruling that the Chief Executive is subject to subpoena. In 1818, President Monroe received a subpoena to testify in a court-martial against one of his appointees. See Rotunda, Presidents and Ex-Presidents as Witnesses: A Brief Historical Footnote, 1975 U. Ill. L. Forum 1, 5. His Attorney General, William Wirt—who had served as a prosecutor during Burr’s trial—advised Monroe that, per Marshall’s ruling, a subpoena to testify may \"be properly awarded to the President.\" Id., at 5–6. Monroe offered to sit for a deposition and ultimately submitted answers to written interrogatories. Following Monroe’s lead, his successors have uniformly agreed to testify when called in criminal proceedings, provided they could do so at a time and place of their choosing. In 1875, President Grant submitted to a three-hour deposition in the criminal prosecution of a political appointee embroiled in a network of tax-evading whiskey distillers. See 1 R. Rotunda & J. Nowak, Constitutional Law §7.1(b)(ii), p. 996 (5th ed. 2012) (Rotunda & Nowak). A century later, President Ford’s attempted assassin subpoenaed him to testify in her defense. See United States v. Fromme, 405 F. Supp. 578 (ED Cal. 1975). Ford obliged—from a safe distance—in the first videotaped deposition of a President. President Carter testified via the same means in the trial of two local officials who, while Carter was Governor of Georgia, had offered to contribute to his campaign in exchange for advance warning of any state gambling raids. See Carter’s Testimony, on Videotape, Is Given to Georgia Gambling Trial, N. Y. Times, Apr. 20, 1978, p. A20 (Carter recounted that he \"rejected the proposition instantly.\"). Two years later, Carter gave videotaped testimony to a federal grand jury investigating whether a fugitive financier had entreated the White House to quash his extradition proceedings. See Rotunda & Nowak §7.1(b)(vi), at 997. President Clinton testified three times, twice via deposition pursuant to subpoenas in federal criminal trials of associates implicated during the Whitewater investigation, and once by video for a grand jury investigating possible perjury. See id., §7.1(c)(viii), at 1007–1008. The bookend to Marshall’s ruling came in 1974 when the question he never had to decide—whether to compel the disclosure of official communications over the objection of the President—came to a head. That spring, the Special Prosecutor appointed to investigate the break-in of the Democratic National Committee Headquarters at the Watergate complex filed an indictment charging seven defendants associated with President Nixon and naming Nixon as an unindicted co-conspirator. As the case moved toward trial, the Special Prosecutor secured a subpoena duces tecum directing Nixon to produce, among other things, tape recordings of Oval Office meetings. Nixon moved to quash the subpoena, claiming that the Constitution provides an absolute privilege of confidentiality to all presidential communications. This Court rejected that argument in United States v. Nixon, 418 U. S. 683 (1974), a decision we later described as \"unequivocally and emphatically endors[ing] Marshall’s\" holding that Presidents are subject to subpoena. Clinton v. Jones, 520 U. S. 681, 704 (1997). The Nixon Court readily acknowledged the importance of preserving the confidentiality of communications \"between high Government officials and those who advise and assist them.\" 418 U. S., at 705. \"Human experience,\" the Court explained, \"teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.\" Ibid. Confidentiality thus promoted the \"public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking.\" Id., at 708. But, like Marshall two centuries prior, the Court recognized the countervailing interests at stake. Invoking the common law maxim that \"the public has a right to every man’s evidence,\" the Court observed that the public interest in fair and accurate judicial proceedings is at its height in the criminal setting, where our common commitment to justice demands that \"guilt shall not escape\" nor \"innocence suffer.\" Id., at 709 (internal quotation marks and alteration omitted). Because these dual aims would be \"defeated if judgments\" were \"founded on a partial or speculative presentation of the facts,\" the Nixon Court recognized that it was \"imperative\" that \"compulsory process be available for the production of evidence needed either by the prosecution or the defense.\" Ibid. The Court thus concluded that the President’s \"generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.\" Id., at 713. Two weeks later, President Nixon dutifully released the tapes. III The history surveyed above all involved federal criminal proceedings. Here we are confronted for the first time with a subpoena issued to the President by a local grand jury operating under the supervision of a state court.5 In the President’s view, that distinction makes all the difference. He argues that the Supremacy Clause gives a sitting President absolute immunity from state criminal subpoenas because compliance with those subpoenas would categorically impair a President’s performance of his Article II functions. The Solicitor General, arguing on behalf of the United States, agrees with much of the President’s reasoning but does not commit to his bottom line. Instead, the Solicitor General urges us to resolve this case by holding that a state grand jury subpoena for a sitting President’s personal records must, at the very least, \"satisfy a heightened standard of need,\" which the Solicitor General contends was not met here. Brief for United States as Amicus Curiae 26, 29. A We begin with the question of absolute immunity. No one doubts that Article II guarantees the independence of the Executive Branch. As the head of that branch, the President \"occupies a unique position in the constitutional scheme.\" Nixon v. Fitzgerald, 457 U. S. 731, 749 (1982). His duties, which range from faithfully executing the laws to commanding the Armed Forces, are of unrivaled gravity and breadth. Quite appropriately, those duties come with protections that safeguard the President’s ability to perform his vital functions. See, e.g., ibid. (concluding that the President enjoys \"absolute immunity from damages liability predicated on his official acts\"); Nixon, 418 U. S., at 708 (recognizing that presidential communications are presumptively privileged). In addition, the Constitution guarantees \"the entire independence of the General Government from any control by the respective States.\" Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232 U. S. 516, 521 (1914). As we have often repeated, \"States have no power . . . to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress.\" McCulloch v. Maryland, 4 Wheat. 316, 436 (1819). It follows that States also lack the power to impede the President’s execution of those laws. Marshall’s ruling in Burr, entrenched by 200 years of practice and our decision in Nixon, confirms that federal criminal subpoenas do not \"rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions.\" Clinton, 520 U. S., at 702–703. But the President, joined in part by the Solicitor General, argues that state criminal subpoenas pose a unique threat of impairment and thus demand greater protection. To be clear, the President does not contend here that this subpoena, in particular, is impermissibly burdensome. Instead he makes a categorical argument about the burdens generally associated with state criminal subpoenas, focusing on three: diversion, stigma, and harassment. We address each in turn. The President’s primary contention, which the Solicitor General supports, is that complying with state criminal subpoenas would necessarily divert the Chief Executive from his duties. He grounds that concern in Nixon v. Fitzgerald, which recognized a President’s \"absolute immunity from damages liability predicated on his official acts.\" 457 U. S., at 749. In explaining the basis for that immunity, this Court observed that the prospect of such liability could \"distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.\" Id., at 753. The President contends that the diversion occasioned by a state criminal subpoena imposes an equally intolerable burden on a President’s ability to perform his Article II functions. But Fitzgerald did not hold that distraction was sufficient to confer absolute immunity. We instead drew a careful analogy to the common law absolute immunity of judges and prosecutors, concluding that a President, like those officials, must \"deal fearlessly and impartially with the duties of his office\"—not be made \"unduly cautious in the discharge of [those] duties\" by the prospect of civil liability for official acts. Id., at 751–752, and n. 32 (internal quotation marks omitted). Indeed, we expressly rejected immunity based on distraction alone 15 years later in Clinton v. Jones. There, President Clinton argued that the risk of being \"distracted by the need to participate in litigation\" entitled a sitting President to absolute immunity from civil liability, not just for official acts, as in Fitzgerald, but for private conduct as well. 520 U. S., at 694, n. 19. We disagreed with that rationale, explaining that the \"dominant concern\" in Fitzgerald was not mere distraction but the distortion of the Executive’s \"decisionmaking process\" with respect to official acts that would stem from \"worry as to the possibility of damages.\" 520 U. S., at 694, n. 19. The Court recognized that Presidents constantly face myriad demands on their attention, \"some private, some political, and some as a result of official duty.\" Id., at 705, n. 40. But, the Court concluded, \"[w]hile such distractions may be vexing to those subjected to them, they do not ordinarily implicate constitutional . . . concerns.\" Ibid. The same is true of criminal subpoenas. Just as a \"properly managed\" civil suit is generally \"unlikely to occupy any substantial amount of \" a President’s time or attention, id., at 702, two centuries of experience confirm that a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties. If anything, we expect that in the mine run of cases, where a President is subpoenaed during a proceeding targeting someone else, as Jefferson was, the burden on a President will ordinarily be lighter than the burden of defending against a civil suit. The President, however, believes the district attorney is investigating him and his businesses. In such a situation, he contends, the \"toll that criminal process . . . exacts from the President is even heavier\" than the distraction at issue in Fitzgerald and Clinton, because \"criminal litigation\" poses unique burdens on the President’s time and will generate a \"considerable if not overwhelming degree of mental preoccupation.\" Brief for Petitioner 16–18, 30 (internal quotation marks omitted). But the President is not seeking immunity from the diversion occasioned by the prospect of future criminal liability. Instead he concedes—consistent with the position of the Department of Justice—that state grand juries are free to investigate a sitting President with an eye toward charging him after the completion of his term. See Reply Brief 19 (citing Memorandum from Randolph D. Moss, Assistant Atty. Gen., Office of Legal Counsel, to the Atty. Gen.: A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. OLC 222, 257, n. 36 (Oct. 16, 2000)). Court The President’s objection therefore must be limited to the additional distraction caused by the subpoena itself. But that argument runs up against the 200 years of precedent establishing that Presidents, and their official communications, are subject to judicial process, see Burr, 25 F. Cas., at 34, even when the President is under investigation, see Nixon, 418 U. S., at 706. 2 The President next claims that the stigma of being subpoenaed will undermine his leadership at home and abroad. Notably, the Solicitor General does not endorse this argument, perhaps because we have twice denied absolute immunity claims by Presidents in cases involving allegations of serious misconduct. See Clinton, 520 U. S., at 685; Nixon, 418 U. S., at 687. But even if a tarnished reputation were a cognizable impairment, there is nothing inherently stigmatizing about a President performing \"the citizen’s normal duty of . . . furnishing information relevant\" to a criminal investigation. Branzburg v. Hayes, 408 U. S. 665, 691 (1972). Nor can we accept that the risk of association with persons or activities under criminal investigation can absolve a President of such an important public duty. Prior Presidents have weathered these associations in federal cases, supra, at 6–10, and there is no reason to think any attendant notoriety is necessarily greater in state court proceedings. To be sure, the consequences for a President’s public standing will likely increase if he is the one under investigation. But, again, the President concedes that such investigations are permitted under Article II and the Supremacy Clause, and receipt of a subpoena would not seem to categorically magnify the harm to the President’s reputation. Additionally, while the current suit has cast the Mazars subpoena into the spotlight, longstanding rules of grand jury secrecy aim to prevent the very stigma the President anticipates. See S. Beale et al., Grand Jury Law and Practice §5:1, p. 5–3 (2d ed. 2018) (\"[T]he federal system and most states have adopted statutes or court rules\" that \"impose sharp restrictions on the extent to which matters occurring before a grand jury may be divulged\" to outside persons.). Of course, disclosure restrictions are not perfect. See Nixon, 418 U. S., at 687, n. 4 (observing that news media reporting made the protective order shielding the fact that the President had been named as an unindicted co-conspirator \"no longer meaningful\"). But those who make unauthorized disclosures regarding a grand jury subpoena do so at their peril. See, e.g., N. Y. Penal Law Ann. §215.70 (West 2010) (designating unlawful grand jury disclosure as a felony). 3 Finally, the President and the Solicitor General warn that subjecting Presidents to state criminal subpoenas will make them \"easily identifiable target[s]\" for harassment. Fitzgerald, 457 U. S., at 753. But we rejected a nearly identical argument in Clinton, where then-President Clinton argued that permitting civil liability for unofficial acts would \"generate a large volume of politically motivated harassing and frivolous litigation.\" Clinton, 520 U. S., at 708. The President and the Solicitor General nevertheless argue that state criminal subpoenas pose a heightened risk and could undermine the President’s ability to \"deal fearlessly and impartially\" with the States. Fitzgerald, 457 U. S., at 752 (internal quotation marks omitted). They caution that, while federal prosecutors are accountable to and removable by the President, the 2,300 district attorneys in this country are responsive to local constituencies, local interests, and local prejudices, and might \"use criminal process to register their dissatisfaction with\" the President. Brief for Petitioner 16. What is more, we are told, the state courts supervising local grand juries may not exhibit the same respect that federal courts show to the President as a coordinate branch of Government. We recognize, as does the district attorney, that harassing subpoenas could, under certain circumstances, threaten the independence or effectiveness of the Executive. See Tr. of Oral Arg. 73. Even so, in Clinton we found that the risk of harassment was not \"serious\" because federal courts have the tools to deter and, where necessary, dismiss vexatious civil suits. 520 U. S., at 708. And, while we cannot ignore the possibility that state prosecutors may have political motivations, see post, at 15 (ALITO, J., dissenting), here again the law already seeks to protect against the predicted abuse. First, grand juries are prohibited from engaging in \"arbitrary fishing expeditions\" and initiating investigations \"out of malice or an intent to harass.\" United States v. R. Enterprises, Inc., 498 U. S. 292, 299 (1991). See also, e.g., Virag v. Hynes, 54 N. Y. 2d 437, 442–443, 430 N. E. 2d 1249, 1252 (1981) (recognizing that grand jury subpoenas can be \"challenged by an affirmative showing of impropriety,\" including \"bad faith\" (internal quotation marks omitted)). These protections, as the district attorney himself puts it, \"apply with special force to a President, in light of the office’s unique position as the head of the Executive Branch.\" Brief for Respondent Vance 43. And, in the event of such harassment, a President would be entitled to the protection of federal courts. The policy against federal interference in state criminal proceedings, while strong, allows \"intervention in those cases where the District Court properly finds that the state proceeding is motivated by a desire to harass or is conducted in bad faith.\" Huffman v. Pursue, Ltd., 420 U. S. 592, 611 (1975). Second, contrary to JUSTICE ALITO’s characterization, our holding does not allow States to \"run roughshod over the functioning of [the Executive B]ranch.\" Post, at 22. The Supremacy Clause prohibits state judges and prosecutors from interfering with a President’s official duties. See, e.g., Tennessee v. Davis, 100 U. S. 257, 263 (1880) (\"No State government can . . . obstruct [the] authorized officers\" of the Federal Government.). Any effort to manipulate a President’s policy decisions or to \"retaliat[e]\" against a President for official acts through issuance of a subpoena, Brief for Respondent Vance 15, 43, would thus be an unconstitutional attempt to \"influence\" a superior sovereign \"exempt\" from such obstacles, see McCulloch, 4 Wheat., at 427. We generally \"assume[] that state courts and prosecutors will observe constitutional limitations.\" Dombrowski v. Pfister, 380 U. S. 479, 484 (1965). Failing that, federal law allows a President to challenge any allegedly unconstitutional influence in a federal forum, as the President has done here. See 42 U. S. C. §1983; Ex parte Young, 209 U. S. 123, 155– 156 (1908) (holding that federal courts may enjoin state officials to conform their conduct to federal law). Given these safeguards and the Court’s precedents, we cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause. Our dissenting colleagues agree. JUSTICE THOMAS reaches the same conclusion based on the original understanding of the Constitution reflected in Marshall’s decision in Burr. Post, at 2, 5–6. And JUSTICE ALITO, also persuaded by Burr, \"agree[s]\" that \"not all\" state criminal subpoenas for a President’s records \"should be barred.\" Post, at 16. On that point the Court is unanimous. B We next consider whether a state grand jury subpoena seeking a President’s private papers must satisfy a heightened need standard. The Solicitor General would require a threshold showing that the evidence sought is \"critical\" for \"specific charging decisions\" and that the subpoena is a \"last resort,\" meaning the evidence is \"not available from any other source\" and is needed \"now, rather than at the end of the President’s term.\" Brief for United States as Amicus Curiae 29, 32 (internal quotation marks and alteration omitted). JUSTICE ALITO, largely embracing those criteria, agrees that a state criminal subpoena to a President \"should not be allowed unless a heightened standard is met.\" Post, at 16–18 (asking whether the information is \"critical\" and \"necessary . . . now\"). We disagree, for three reasons. First, such a heightened standard would extend protection designed for official documents to the President’s private papers. As the Solicitor General and JUSTICE ALITO acknowledge, their proposed test is derived from executive privilege cases that trace back to Burr. Brief for United States as Amicus Curiae 26– 28; post, at 17. There, Marshall explained that if Jefferson invoked presidential privilege over executive communications, the court would not \"proceed against the president as against an ordinary individual\" but would instead require an affidavit from the defense that \"would clearly show the paper to be essential to the justice of the case.\" Burr, 25 F. Cas., at 192. The Solicitor General and JUSTICE ALITO would have us apply a similar standard to a President’s personal papers. But this argument does not account for the relevant passage from Burr: \"If there be a paper in the possession of the executive, which is not of an official nature, he must stand, as respects that paper, in nearly the same situation with any other individual.\" Id., at 191 (emphasis added). And it is only \"nearly\"—and not \"entirely\"—because the President retains the right to assert privilege over documents that, while ostensibly private, \"partake of the character of an official paper.\" Id., at 191–192. Second, neither the Solicitor General nor JUSTICE ALITO has established that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions. Beyond the risk of harassment, which we addressed above, the only justification they offer for the heightened standard is protecting Presidents from \"unwarranted burdens.\" Brief for United States as Amicus Curiae 28; see post, at 16 (asking whether \"there is an urgent and critical need for the subpoenaed information\"). In effect, they argue that even if federal subpoenas to a President are warranted whenever evidence is material, state subpoenas are warranted \"only when [the] evidence is essential.\" Brief for United States as Amicus Curiae 28; see post, at 16. But that double standard has no basis in law. For if the state subpoena is not issued to manipulate, supra, at 16–17, the documents themselves are not protected, supra, at 18, and the Executive is not impaired, supra, at 12–15, then nothing in Article II or the Supremacy Clause supports holding state subpoenas to a higher standard than their federal counterparts. Finally, in the absence of a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence. Requiring a state grand jury to meet a heightened standard of need would hobble the grand jury’s ability to acquire \"all information that might possibly bear on its investigation.\" R. Enterprises, Inc., 498 U. S., at 297. And, even assuming the evidence withheld under that standard were preserved until the conclusion of a President’s term, in the interim the State would be deprived of investigative leads that the evidence might yield, allowing memories to fade and documents to disappear. This could frustrate the identification, investigation, and indictment of third parties (for whom applicable statutes of limitations might lapse). More troubling, it could prejudice the innocent by depriving the grand jury of exculpatory evidence. Rejecting a heightened need standard does not leave Presidents with \"no real protection.\" Post, at 19 (opinion of ALITO, J.). To start, a President may avail himself of the same protections available to every other citizen. These include the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth. See, e.g., Virag, 54 N. Y. 2d, at 442–445, 430 N. E. 2d, at 1252–1253; In re Grand Jury Subpoenas, 72 N. Y. 2d 307, 315–316, 528 N. E. 2d 1195, 1200 (1988) (recognizing that grand jury subpoenas can be challenged as \"overly broad\" or \"unreasonably burdensome\" (internal quotation marks omitted)). And, as in federal court, \"[t]he high respect that is owed to the office of the Chief Executive . . . should inform the conduct of the entire proceeding, including the timing and scope of discovery.\" Clinton, 520 U. S., at 707. See id., at 724 (BREYER, J., concurring in judgment) (stressing the need for courts presiding over suits against the President to \"schedule proceedings so as to avoid significant interference with the President’s ongoing discharge of his official responsibilities\"); Nixon, 418 U. S., at 702 (\"[W]here a subpoena is directed to a President . . . appellate review . . . should be particularly meticulous.\"). Furthermore, although the Constitution does not entitle the Executive to absolute immunity or a heightened standard, he is not \"relegate[d]\" only to the challenges available to private citizens. Post, at 17 (opinion of ALITO, J.). A President can raise subpoena-specific constitutional challenges, in either a state or federal forum. As previously noted, he can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause. See supra, at 17. This avenue protects against local political machinations \"interposed as an obstacle to the effective operation of a federal constitutional power.\" United States v. Belmont, 301 U. S. 324, 332 (1937). In addition, the Executive can—as the district attorney concedes—argue that compliance with a particular subpoena would impede his constitutional duties. Brief for Respondent Vance 42. Incidental to the functions confided in Article II is \"the power to perform them, without obstruction or impediment.\" 3 J. Story, Commentaries on the Constitution of the United States §1563, pp. 418–419 (1833). As a result, \"once the President sets forth and explains a conflict between judicial proceeding and public duties,\" or shows that an order or subpoena would \"significantly interfere with his efforts to carry out\" those duties, \"the matter changes.\" Clinton, 520 U. S., at 710, 714 (opinion of BREYER, J.). At that point, a court should use its inherent authority to quash or modify the subpoena, if necessary to ensure that such \"interference with the President’s duties would not occur.\" Id., at 708 (opinion of the Court). Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need. The \"guard[] furnished to this high officer\" lies where it always has—in \"the conduct of a court\" applying established legal and constitutional principles to individual subpoenas in a manner that preserves both the independence of the Executive and the integrity of the criminal justice system. Burr, 25 F. Cas., at 34. The arguments presented here and in the Court of Appeals were limited to absolute immunity and heightened need. The Court of Appeals, however, has directed that the case be returned to the District Court, where the President may raise further arguments as appropriate. 941 F. 3d, at 646, n. 19. We affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."},
{"docket_number": "19-267", "syllabus": "The First Amendment protects the right of religious institutions \"to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.\" Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116. Applying this principle, this Court held in HosannaTabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, that the First Amendment barred a court from entertaining an employment discrimination claim brought by an elementary school teacher, Cheryl Perich, against the religious school where she taught. Adopting the so-called \"ministerial exception\" to laws governing the employment relationship between a religious institution and certain key employees, the Court found relevant Perich’s title as a \"Minister of Religion, Commissioned,\" her educational training, and her responsibility to teach religion and participate with students in religious activities. Id., at 190–191. In these cases, two elementary school teachers at Roman Catholic schools in the Archdiocese of Los Angeles had teaching responsibilities similar to Perich’s. Agnes Morrissey-Berru taught at Our Lady of Guadalupe School (OLG), and Kristen Biel taught at St. James School. Both were employed under nearly identical agreements that set out the schools’ mission to develop and promote a Catholic School faith community; imposed commitments regarding religious instruction, worship, and personal modeling of the faith; and explained that teachers’ performance would be reviewed on those bases. Each was also required to comply with her school’s faculty handbook, which set out similar expectations. Each taught religion in the classroom, worshipped with her students, prayed with her students, and had her performance measured on religious bases. Both teachers sued their schools after their employment was terminated. Morrissey-Berru claimed that OLG had demoted her and had failed to renew her contract in order to replace her with a younger teacher in violation of the Age Discrimination in Employment Act of 1967. OLG invoked Hosanna-Tabor’s \"ministerial exception\" and successfully moved for summary judgment, but the Ninth Circuit reversed, holding that Morrissey-Berru did not fall within the exception because she did not have the formal title of \"minister,\" had limited formal religious training, and did not hold herself out publicly as a religious leader. Biel alleged that St. James discharged her because she had requested a leave of absence to obtain breast cancer treatment. Like OLG, St. James obtained summary judgment under the \"ministerial exception.\" But the Ninth Circuit reversed, reasoning that Biel lacked Perich’s credentials, religious training, and ministerial background. Held: The First Amendment’s Religion Clauses foreclose the adjudication of Morrissey-Berru’s and Biel’s employment-discrimination claims. Pp. 10–27. (a) The independence of religious institutions in matters of \"faith and doctrine\" is closely linked to independence in what the Court has termed \" ‘matters of church government.’ \" Hosanna-Tabor, 565 U. S., at 186. For this reason, courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions. Pp. 10–11. (b) When the \"ministerial exception\" reached this Court in HosannaTabor, the Court looked to precedent and the \"background\" against which \"the First Amendment was adopted,\" 565 U. S., at 183, and unanimously recognized that the Religion Clauses foreclose certain employment-discrimination claims brought against religious organizations, id., at 188. Pp. 11–14. (c) In Hosanna-Tabor, the Court applied the \"ministerial exception\" but declined \"to adopt a rigid formula for deciding when an employee qualifies as a minister.\" 565 U. S., at 190. Instead, the Court identified four relevant circumstances of Perich’s employment at an Evangelical Lutheran school. First, Perich’s church had given her the title of \"minister, with a role distinct from that of most of its members.\" Id., at 191. Second, her position \"reflected a significant degree of religious training followed by a formal process of commissioning.\" Ibid. Third, she \"held herself out as a minister of the Church\" and claimed certain tax benefits. Id., at 191–192. Fourth, her \"job duties reflected a role in conveying the Church’s message and carrying out its mission.\" Id., at 192. Pp. 14–16. (d) A variety of factors may be important in determining whether a particular position falls within the ministerial exception. The circumstances that informed the Court’s decision in Hosanna-Tabor were relevant because of their relationship to Perich’s \"role in conveying the Church’s message and carrying out its mission.\" 565 U. S., at 192. But the recognition of the significance of those factors in Perich’s case did not mean that they must be met in all other cases. What matters is what an employee does. Implicit in the Hosanna-Tabor decision was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of a private religious school’s mission. Pp. 16–21. (e) Applying this understanding of the Religion Clauses here, it is apparent that Morrissey-Berru and Biel qualify for the exception recognized in Hosanna-Tabor. There is abundant record evidence that they both performed vital religious duties, such as educating their students in the Catholic faith and guiding their students to live their lives in accordance with that faith. Their titles did not include the term \"minister\" and they had less formal religious training than Perich, but their core responsibilities were essentially the same. And their schools expressly saw them as playing a vital role in carrying out the church’s mission. A religious institution’s explanation of the role of its employees in the life of the religion in question is important. Pp. 21–22. (f) The Ninth Circuit mistakenly treated the circumstances the Court found relevant in Hosanna-Tabor as a checklist of items to be assessed and weighed against each other. That rigid test produced a distorted analysis. First, it invested undue significance in the fact that Morrissey-Berru and Biel did not have clerical titles. Second, it assigned too much weight to the fact that Morrissey-Berru and Biel had less formal religious schooling that Perich. Third, the St. James panel inappropriately diminished the significance of Biel’s duties. Respondents would make Hosanna-Tabor’s governing test even more rigid. And they go further astray in suggesting that an employee can never come within the Hosanna-Tabor exception unless the employee is a \"practicing\" member of the religion with which the employer is associated. Deciding such questions risks judicial entanglement in religious issues. Pp. 22–27.", "opinion": "These cases require us to decide whether the First Amendment permits courts to intervene in employment disputes involving teachers at religious schools who are entrusted with the responsibility of instructing their students in the faith. The First Amendment protects the right of religious institutions \"to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.\" Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116 (1952). Applying this principle, we held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012), that the First Amendment barred a court from entertaining an employment discrimination claim brought by an elementary school teacher, Cheryl Perich, against the religious school where she taught. Our decision built on a line of lower court cases adopting what was dubbed the \"ministerial exception\" to laws governing the employment relationship between a religious institution and certain key employees. We did not announce \"a rigid formula\" for determining whether an employee falls within this exception, but we identified circumstances that we found relevant in that case, including Perich’s title as a \"Minister of Religion, Commissioned,\" her educational training, and her responsibility to teach religion and participate with students in religious activities. Id., at 190–191. In the cases now before us, we consider employment discrimination claims brought by two elementary school teachers at Catholic schools whose teaching responsibilities are similar to Perich’s. Although these teachers were not given the title of \"minister\" and have less religious training than Perich, we hold that their cases fall within the same rule that dictated our decision in Hosanna-Tabor. The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate. I A 1 The first of the two cases we now decide involves Agnes Morrissey-Berru, who was employed at Our Lady of Guadalupe School (OLG), a Roman Catholic primary school in the Archdiocese of Los Angeles. Excerpts of Record (ER) 58 in No. 17–56624 (CA9) (OLG).1 For many years, MorrisseyBerru was employed at OLG as a lay fifth or sixth grade teacher. Like most elementary school teachers, she taught all subjects, and since OLG is a Catholic school, the curriculum included religion. App. 23, 75. As a result, she was her students’ religion teacher. Morrissey-Berru earned a B. A. in English Language Arts, with a minor in secondary education, and she holds a California teaching credential. Id., at 21–22. While on the faculty at OLG, she took religious education courses at the school’s request, ER 41–ER 42, ER 44–ER 45, ER 276, and was expected to attend faculty prayer services, App. to Pet. for Cert. in No. 19–267, p. 87a. Each year, Morrissey-Berru and OLG entered into an employment agreement, App. 21,3 that set out the school’s \"mission\" and Morrissey-Berru’s duties. See, e.g., id., at 154–164.4 The agreement stated that the school’s mission was \"to develop and promote a Catholic School Faith Community,\" id., at 154, and it informed Morrissey-Berru that \"[a]ll [her] duties and responsibilities as a Teache[r were to] be performed within this overriding commitment.\" Ibid. The agreement explained that the school’s hiring and retention decisions would be guided by its Catholic mission, and the agreement made clear that teachers were expected to \"model and promote\" Catholic \"faith and morals.\" Id., at 155. Under the agreement, Morrissey-Berru was required to participate in \"[s]chool liturgical activities, as requested,\" ibid., and the agreement specified that she could be terminated \"for ‘cause’\" for failing to carry out these duties or for \"conduct that brings discredit upon the School or the Roman Catholic Church.\" Id., at 155–157. The agreement required compliance with the faculty handbook, which sets out similar expectations. Id., at 156; App. to Pet. for Cert. in No. 19–267, at 52a–55a. The pastor of the parish, a Catholic priest, had to approve Morrissey-Berru’s hiring each year. Id., at 14a; see also App. 164. Like all teachers in the Archdiocese of Los Angeles, Morrissey-Berru was \"considered a catechist,\" i.e., \"a teacher of religio[n].\" App. to Pet. for Cert. in No. 19–267, at 56a, 60a. Catechists are \"responsible for the faith formation of the students in their charge each day.\" Id., at 56a. Morrissey-Berru provided religious instruction every day using a textbook designed for use in teaching religion to young Catholic students. Id., at 45a–51a, 90a–92a; see App. 79–80. Under the prescribed curriculum, she was expected to teach students, among other things, \"to learn and express belief that Jesus is the son of God and the Word made flesh\"; to \"identify the ways\" the church \"carries on the mission of Jesus\"; to \"locate, read and understand stories from the Bible\"; to \"know the names, meanings, signs and symbols of each of the seven sacraments\"; and to be able to \"explain the communion of saints.\" App. to Pet. for Cert. in No. 19–267, at 91a–92a. She tested her students on that curriculum in a yearly exam. Id., at 87a. She also directed and produced an annual passion play. Id., at 26a. Morrissey-Berru prepared her students for participation in the Mass and for communion and confession. Id., at 68a, 81a, 88a–89a. She also occasionally selected and prepared students to read at Mass. Id., at 83a, 89a. And she was expected to take her students to Mass once a week and on certain feast days (such as the Feast Day of St. Juan Diego, All Saints Day, and the Feast of Our Lady), and to take them to confession and to pray the Stations of the Cross. Id., at 68a–69a, 83a, 88a. Each year, she brought them to the Catholic Cathedral in Los Angeles, where they participated as altar servers. Id., at 95a–96a. This visit, she explained, was \"an important experience\" because \"[i]t is a big honor\" for children to \"serve the altar\" at the cathedral. Id., at 96a. Morrissey-Berru also prayed with her students. Her class began or ended every day with a Hail Mary. Id., at 87a. She led the students in prayer at other times, such as when a family member was ill. Id., at 21a, 81a, 86a–87a. And she taught them to recite the Apostle’s Creed and the Nicene Creed, as well as prayers for specific purposes, such as in connection with the sacrament of confession. Id., at 20a–21a, 92a. The school reviewed Morrissey-Berru’s performance under religious standards. The \"‘Classroom Observation Report’\" evaluated whether Catholic values were \"infused through all subject areas\" and whether there were religious signs and displays in the classroom. Id., at 94a, 95a; App. 59. Morrissey-Berru testified that she tried to instruct her students \"in a manner consistent with the teachings of the Church,\" App. to Pet. for Cert. in No. 19–267, at 96a, and she said that she was \"committed to teaching children Catholic values\" and providing a \"faith-based education.\" Id., at 82a. And the school principal confirmed that Morrissey-Berru was expected to do these things.5 2 In 2014, OLG asked Morrissey-Berru to move from a fulltime to a part-time position, and the next year, the school declined to renew her contract. She filed a claim with the Equal Employment Opportunity Commission (EEOC), received a right-to-sue letter, App. 169, and then filed suit under the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U. S. C. §621 et seq., claiming that the school had demoted her and had failed to renew her contract so that it could replace her with a younger teacher. App. 168–169. The school maintains that it based its decisions on classroom performance—specifically, Morrissey-Berru’s difficulty in administering a new reading and writing program, which had been introduced by the school’s new principal as part of an effort to maintain accreditation and improve the school’s academic program. App. to Pet. for Cert. in No. 19–267, at 66a–67a, 70a, 73a. Invoking the \"ministerial exception\" that we recognized in Hosanna-Tabor, OLG successfully moved for summary judgment, but the Ninth Circuit reversed in a brief opinion. 769 Fed. Appx. 460, 461 (2019). The court acknowledged that Morrissey-Berru had \"significant religious responsibilities\" but reasoned that \"an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework.\" Ibid. Unlike Perich, the court noted, Morrissey-Berru did not have the formal title of \"minister,\" had limited formal religious training, and \"did not hold herself out to the public as a religious leader or minister.\" Ibid. In the court’s view, these \"factors\" outweighed the fact that she was invested with significant religious responsibilities. Ibid. The court therefore held that Morrissey-Berru did not fall within the \"ministerial exception.\" OLG filed a petition for certiorari, and we granted review. B 1 The second case concerns the late Kristen Biel, who worked for about a year and a half as a lay teacher at St. James School, another Catholic primary school in Los Angeles. For part of one academic year, Biel served as a longterm substitute teacher for a first grade class, and for one full year she was a full-time fifth grade teacher. App. 336– 337. Like Morrissey-Berru, she taught all subjects, including religion. Id., at 288; ER 588 in No. 17–55180 (CA9) (St. James).6 Biel had a B. A. in liberal studies and a teaching credential. App. 244. During her time at St. James, she attended a religious conference that imparted \"[d]ifferent techniques on teaching and incorporating God\" into the classroom. Id., at 260–262. Biel was Catholic. Biel’s employment agreement was in pertinent part nearly identical to Morrissey-Berru’s. Compare id., at 154–164, with id., at 320–329. The agreement set out the same religious mission; required teachers to serve that mission; imposed commitments regarding religious instruction, worship, and personal modeling of the faith; and explained that teachers’ performance would be reviewed on those bases. Biel’s agreement also required compliance with the St. James faculty handbook, which resembles the OLG handbook. Id., at 322. Compare ER 641–ER 651 (OLG) with ER 565–ER 597 (St. James). The St. James handbook defines \"religious development\" as the school’s first goal and provides that teachers must \"mode[l] the faith life,\" \"exemplif[y] the teachings of Jesus Christ,\" \"integrat[e] Catholic thought and principles into secular subjects,\" and \"prepar[e] students to receive the sacraments.\" Id., at ER 570–ER 572. The school principal confirmed these expectations.8 Like Morrissey-Berru, Biel instructed her students in the tenets of Catholicism. She was required to teach religion for 200 minutes each week, App. 257–258, and administered a test on religion every week, id., at 256–257. She used a religion textbook selected by the school’s principal, a Catholic nun. Id., at 255; ER 37 (St. James). The religious curriculum covered \"the norms and doctrines of the Catholic Faith, including . . . the sacraments of the Catholic Church, social teachings according to the Catholic Church, morality, the history of Catholic saints, [and] Catholic prayers.\" App. to Pet. for Cert. in No. 19–348, p. 83a. Biel worshipped with her students. At St. James, teachers are responsible for \"prepar[ing] their students to be active participants at Mass, with particular emphasis on Mass responses,\" ER 587, and Biel taught her students about \"Catholic practices like the Eucharist and confession,\" id., at ER 226–ER 227. At monthly Masses, she prayed with her students. App. to Pet. for Cert. in No. 19-348, at 82a, 94a–96a. Her students participated in the liturgy on some occasions by presenting the gifts (bringing bread and wine to the priest). Ibid. Teachers at St. James were \"required to pray with their students every day,\" id., at 80a–81a, 110a, and Biel observed this requirement by opening and closing each school day with prayer, including the Lord’s Prayer or a Hail Mary, id., at 81a–82a, 93a, 110a. As at OLG, teachers at St. James are evaluated on their fulfillment of the school’s religious mission. Id., at 83a–84a. St. James used the same classroom observation standards as OLG and thus examined whether teachers \"infus[ed]\" Catholic values in all their teaching and included religious displays in their classrooms. Id., at 83a–84a, 92a. The school’s principal, a Catholic nun, evaluated Biel on these measures. Id., at 106a. 2 St. James declined to renew Biel’s contract after one full year at the school. She filed charges with the EEOC, and after receiving a right-to-sue letter, brought this suit, alleging that she was discharged because she had requested a leave of absence to obtain treatment for breast cancer. App. 337–338. The school maintains that the decision was based on poor performance—namely, a failure to observe the planned curriculum and keep an orderly classroom. See id., at 303; App. to Pet. for Cert. in No. 19–348, at 85a–89a, 114a–115a, 120a–121a. Like OLG, St. James obtained summary judgment under the ministerial exception, id., at 74a, but a divided panel of the Ninth Circuit reversed, reasoning that Biel lacked Perich’s \"credentials, training, [and] ministerial background,\" 911 F. 3d 603, 608 (2018). Judge D. Michael Fisher, sitting by designation, dissented. Considering the totality of the circumstances, he would have held that the ministerial exception applied \"because of the substance reflected in [Biel’s] title and the important religious functions she performed\" as a \"stewar[d] of the Catholic faith to the children in her class.\" Id., at 621, 622. An unsuccessful petition for rehearing en banc ensued. Judge Ryan D. Nelson, joined by eight other judges, dissented. 926 F. 3d 1238, 1239 (2019). Judge Nelson faulted the panel majority for \"embrac[ing] the narrowest construction\" of the ministerial exception, departing from \"the consensus of our sister circuits that the employee’s ministerial function should be the key focus,\" and demanding nothing less than a \"carbon copy\" of the specific facts in HosannaTabor. Ibid. We granted review and consolidated the case with OLG’s. 589 U. S. ___ (2019). II A The First Amendment provides that \"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.\" Among other things, the Religion Clauses protect the right of churches and other religious institutions to decide matters \"‘of faith and doctrine’\" without government intrusion. Hosanna-Tabor, 565 U. S., at 186 (quoting Kedroff, 344 U. S., at 116). State interference in that sphere would obviously violate the free exercise of religion, and any attempt by government to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion. The First Amendment outlaws such intrusion. The independence of religious institutions in matters of \"faith and doctrine\" is closely linked to independence in what we have termed \"‘matters of church government.’\" 565 U. S., at 186. This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles. The \"ministerial exception\" was based on this insight. Under this rule, courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions. The rule appears to have acquired the label \"ministerial exception\" because the individuals involved in pioneering cases were described as \"ministers.\" See McClure v. Salvation Army, 460 F. 2d 553, 558–559 (CA5 1972); Rayburn v. General Conference of Seventh-day Adventists, 772 F. 2d 1164, 1168 (CA4 1985). Not all pre-Hosanna-Tabor decisions applying the exception involved \"ministers\" or even members of the clergy. See, e.g., EEOC v. Southwestern Baptist Theological Seminary, 651 F. 2d 277, 283–284 (CA5 1981); EEOC v. Roman Catholic Diocese of Raleigh, N. C., 213 F. 3d 795, 800–801 (CA4 2000). But it is instructive to consider why a church’s independence on matters \"of faith and doctrine\" requires the authority to select, supervise, and if necessary, remove a minister without interference by secular authorities. Without that power, a wayward minister’s preaching, teaching, and counseling could contradict the church’s tenets and lead the congregation away from the faith.9 The ministerial exception was recognized to preserve a church’s independent authority in such matters. B When the so-called ministerial exception finally reached this Court in Hosanna-Tabor, we unanimously recognized that the Religion Clauses foreclose certain employment discrimination claims brought against religious organizations. 565 U. S., at 188. The constitutional foundation for our holding was the general principle of church autonomy to which we have already referred: independence in matters of faith and doctrine and in closely linked matters of internal government. The three prior decisions on which we primarily relied drew on this broad principle, and none was exclusively concerned with the selection or supervision of clergy. Watson v. Jones, 13 Wall. 679 (1872), involved a dispute about the control of church property, and both Kedroff, 344 U. S. 94, and Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U. S. 696 (1976), also concerned the control of property, as well as the appointment and authority of bishops. In addition to these precedents, we looked to the \"background\" against which \"the First Amendment was adopted.\" Hosanna-Tabor, 565 U. S., at 183. We noted that 16th-century British statutes had given the Crown the power to fill high \"religious offices\" and to control the exercise of religion in other ways, and we explained that the founding generation sought to prevent a repetition of these practices in our country. Ibid. Because Cheryl Perich, the teacher in Hosanna-Tabor, had a title that included the word \"minister,\" we naturally concentrated on historical events involving clerical offices, but the abuses we identified were not limited to the control of appointments. We pointed to the various Acts of Uniformity, id., at 182, which dictated what ministers could preach and imposed penalties for non-compliance. Under the 1549 Act, a minister who \"preach[ed,] declare[d,] or [spoke] any thing\" in derogation of any part of the Book of Common Prayer could be sentenced to six months in jail for a first offense and life imprisonment for a third violation. Act of Uniformity, 2 & 3 Edw. 6, ch. 1. In addition, all other English subjects were forbidden to say anything against the Book of Common Prayer in \"[i]nterludes[,] play[s,] song[s,] r[h]ymes, or by other open [w]ord[s].\" Ibid. A 1559 law contained similar prohibitions. See Act of Uniformity, 1 Eliz., ch. 2. After the Restoration, Parliament enacted a new law with a similar aim. Ministers and \"Lecturer[s]\" were required to pledge \"unfeigned assent and consent\" to the Book of Common Prayer, and all schoolmasters, private tutors, and university professors were required to \"conforme to the Liturgy of the Church of England\" and not \"to endeavour any change or alteration\" of the church. Act of Uniformity, 1662, 14 Car. 2, ch. 4. British law continued to impose religious restrictions on education in the 18th century and past the time of the adoption of the First Amendment. The Schism or Established Church Act of 1714, 13 Ann., ch. 7, required that schoolmasters and tutors be licensed by a bishop. Non-conforming Protestants, as well as Catholics and Jews, could not teach at or attend the two universities, and as Blackstone wrote, \"[p]ersons professing the popish religion [could] not keep or teach any school under pain of perpetual imprisonment.\" 4 W. Blackstone, Commentaries on the Laws of England 55 (8th ed. 1778). The law also imposed penalties on \"any person [who] sen[t] another abroad to be educated in the popish religion . . . or [who] contribute[d] to their maintenance when there.\" Id., at 55–56. British colonies in North America similarly controlled both the appointment of clergy, see Hosanna-Tabor, 565 U. S., at 183, and the teaching of students. A Maryland law \"prohibited any Catholic priest or lay person from keeping school, or taking upon himself the education of youth.\" 2 T. Hughes, History of the Society of Jesus in North America: Colonial and Federal 443–444 (1917). In 1771, the Governor of New York was instructed to require that all schoolmasters arriving from England obtain a license from the Bishop of London. 3 C. Lincoln, The Constitutional History of New York 485, 745 (1906). New York law also required an oath and license for any \"‘vagrant Preacher, Moravian, or disguised Papist’\" to \"‘Preach or Teach, Either in Public or Private.’\" S. Cobb, The Rise of Religious Liberty in America 358 (1902). C In Hosanna-Tabor, Cheryl Perich, a kindergarten and fourth grade teacher at an Evangelical Lutheran school, filed suit in federal court, claiming that she had been discharged because of a disability, in violation of the Americans with Disabilities Act of 1990 (ADA), 42 U. S. C. §12112(a). The school responded that the real reason for her dismissal was her violation of the Lutheran doctrine that disputes should be resolved internally and not by going to outside authorities. We held that her suit was barred by the \"ministerial exception\" and noted that it \"concern[ed] government interference with an internal church decision that affects the faith and mission of the church.\" 565 U. S., at 190. We declined \"to adopt a rigid formula for deciding when an employee qualifies as a minister,\" and we added that it was \"enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.\" Id., at 190–191. We identified four relevant circumstances but did not highlight any as essential. First, we noted that her church had given Perich the title of \"minister, with a role distinct from that of most of its members.\" Id., at 191. Although she was not a minister in the usual sense of the term—she was not a pastor or deacon, did not lead a congregation, and did not regularly conduct religious services—she was classified as a \"called\" teacher, as opposed to a lay teacher, and after completing certain academic requirements, was given the formal title \"‘Minister of Religion, Commissioned.’\" Id., at 177–178, 191. Second, Perich’s position \"reflected a significant degree of religious training followed by a formal process of commissioning.\" Id., at 191. Third, \"Perich held herself out as a minister of the Church by accepting the formal call to religious service, according to its terms,\" and by claiming certain tax benefits. Id., at 191–192. Fourth, \"Perich’s job duties reflected a role in conveying the Church’s message and carrying out its mission.\" Id., at 192. The church charged her with \"‘lead[ing] others toward Christian maturity’\" and \"‘teach[ing] faithfully the Word of God, the Sacred Scriptures, in its truth and purity and as set forth in all the symbolical books of the Evangelical Lutheran Church.’\" Ibid. Although Perich also provided instruction in secular subjects, she taught religion four days a week, led her students in prayer three times a day, took her students to a chapel service once a week, and participated in the liturgy twice a year. \"As a source of religious instruction,\" we explained, \"Perich performed an important role in transmitting the Lutheran faith to the next generation.\" Ibid. The case featured two concurrences. In the first, JUSTICE THOMAS stressed that courts should \"defer to a religious organization’s good-faith understanding of who qualifies as its minister.\" Id., at 196. That is so, JUSTICE THOMAS explained, because \"[a] religious organization’s right to choose its ministers would be hollow . . . if secular courts could second-guess\" the group’s sincere application of its religious tenets. Id., at 197. The second concurrence argued that application of the \"ministerial exception\" should \"focus on the function performed by persons who work for religious bodies\" rather than labels or designations that may vary across faiths. Id., at 198 (opinion of ALITO, J., joined by KAGAN, J.). This opinion viewed the title of \"minister\" as \"relevant\" but \"neither necessary nor sufficient.\" Id., at 202. It noted that \"most faiths do not employ the term ‘minister’\" and that some \"consider the ministry to consist of all or a very large percentage of their members.\" Ibid. The opinion concluded that the \"‘ministerial’ exception\" \"should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.\" Id., at 199. D 1 In determining whether a particular position falls within the Hosanna-Tabor exception, a variety of factors may be important.10 The circumstances that informed our decision in Hosanna-Tabor were relevant because of their relationship to Perich’s \"role in conveying the Church’s message and carrying out its mission,\" id., at 192, but the other noted circumstances also shed light on that connection. In a denomination that uses the term \"minister,\" conferring that title naturally suggests that the recipient has been given an important position of trust. In Perich’s case, the title that she was awarded and used demanded satisfaction of significant academic requirements and was conferred only after a formal approval process, id., at 191, and those circumstances also evidenced the importance attached to her role, ibid. But our recognition of the significance of those factors in Perich’s case did not mean that they must be met—or even that they are necessarily important—in all other cases. Take the question of the title \"minister.\" Simply giving an employee the title of \"minister\" is not enough to justify the exception. And by the same token, since many religious traditions do not use the title \"minister,\" it cannot be a necessary requirement. Requiring the use of the title would constitute impermissible discrimination, and this problem cannot be solved simply by including positions that are thought to be the counterparts of a \"minister,\" such as priests, nuns, rabbis, and imams. See Brief for Respondents 21. Nuns are not the same as Protestant ministers. A brief submitted by Jewish organizations makes the point that \"Judaism has many ‘ministers,’\" that is, \"the term ‘minister’ encompasses an extensive breadth of religious functionaries in Judaism.\"11 For Muslims, \"an inquiry into whether imams or other leaders bear a title equivalent to ‘minister’ can present a troubling choice between denying a central pillar of Islam—i.e., the equality of all believers— and risking loss of ministerial exception protections.\"12 If titles were all-important, courts would have to decide which titles count and which do not, and it is hard to see how that could be done without looking behind the titles to what the positions actually entail. Moreover, attaching too much significance to titles would risk privileging religious traditions with formal organizational structures over those that are less formal. For related reasons, the academic requirements of a position may show that the church in question regards the position as having an important responsibility in elucidating or teaching the tenets of the faith. Presumably the purpose of such requirements is to make sure that the person holding the position understands the faith and can explain it accurately and effectively. But insisting in every case on rigid academic requirements could have a distorting effect. This is certainly true with respect to teachers. Teaching children in an elementary school does not demand the same formal religious education as teaching theology to divinity students. Elementary school teachers often teach secular subjects in which they have little if any special training. In addition, religious traditions may differ in the degree of formal religious training thought to be needed in order to teach. See, e.g., Brief for Ethics and Religious Liberty Commission of the Southern Baptist Convention et al. as Amici Curiae 12 (\"many Protestant groups have historically rejected any requirement of formal theological training\"). In short, these circumstances, while instructive in HosannaTabor, are not inflexible requirements and may have far less significance in some cases. What matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school. As we put it, Perich had been entrusted with the responsibility of \"transmitting the Lutheran faith to the next generation.\" 565 U. S., at 192. One of the concurrences made the same point, concluding that the exception should include \"any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.\" Id., at 199 (opinion of ALITO, J.) (emphasis added). Religious education is vital to many faiths practiced in the United States. This point is stressed by briefs filed in support of OLG and St. James by groups affiliated with a wide array of faith traditions. In the Catholic tradition, religious education is \"‘intimately bound up with the whole of the Church’s life.’\" Catechism of the Catholic Church 8 (2d ed. 2016). Under canon law, local bishops must satisfy themselves that \"those who are designated teachers of religious instruction in schools . . . are outstanding in correct doctrine, the witness of a Christian life, and teaching skill.\" Code of Canon Law, Canon 804, §2 (Eng. transl. 1998). Similarly, Protestant churches, from the earliest settlements in this country, viewed education as a religious obligation. A core belief of the Puritans was that education was essential to thwart the \"chief project of that old deluder, Satan, to keep men from the knowledge of the Scriptures.\"13 Thus, in 1647, the Massachusetts General Court passed what has been called the Old Deluder Satan Act requiring every sizable town to establish a school.14 Most of the oldest educational institutions in this country were originally established by or affiliated with churches, and in recent years, non-denominational Christian schools have proliferated with the aim of inculcating Biblical values in their students.15 Many such schools expressly set themselves apart from public schools that they believe do not reflect their values.16 Religious education is a matter of central importance in Judaism. As explained in briefs submitted by Jewish organizations, the Torah is understood to require Jewish parents to ensure that their children are instructed in the faith.17 One brief quotes Maimonides’s statement that religious instruction \"is an obligation of the highest order, entrusted only to a schoolteacher possessing ‘fear of Heaven.’\"18 \"The contemporary American Jewish community continues to place the education of children in its faith and rites at the center of its communal efforts.\"19 Religious education is also important in Islam. \"[T]he acquisition of at least rudimentary knowledge of religion and its duties [is] mandatory for the Muslim individual.\"20 This precept is traced to the Prophet Muhammad, who proclaimed that \"‘[t]he pursuit of knowledge is incumbent on every Muslim.’\"21 \"[T]he development of independent private Islamic schools ha[s] become an important part of the picture of Muslim education in America.\"22 The Church of Jesus Christ of Latter-day Saints has a long tradition of religious education, with roots in revelations given to Joseph Smith. See Doctrine and Covenants of the Church of Jesus Christ of Latter-day Saints §93:36 (2013). \"The Church Board of Education has established elementary, middle, or secondary schools in which both secular and religious instruction is offered.\" Seventh-day Adventists \"trace the importance of education back to the Garden of Eden.\"24 Seventh-day Adventist formation \"restore[s] human beings into the image of God as revealed by the life of Jesus Christ\" and focuses on the development of \"knowledge, skills, and understandings to serve God and humanity.\"25 This brief survey does not do justice to the rich diversity of religious education in this country, but it shows the close connection that religious institutions draw between their central purpose and educating the young in the faith. 2 When we apply this understanding of the Religion Clauses to the cases now before us, it is apparent that Morrissey-Berru and Biel qualify for the exemption we recognized in Hosanna-Tabor. There is abundant record evidence that they both performed vital religious duties. Educating and forming students in the Catholic faith lay at the core of the mission of the schools where they taught, and their employment agreements and faculty handbooks specified in no uncertain terms that they were expected to help the schools carry out this mission and that their work would be evaluated to ensure that they were fulfilling that responsibility. As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. And not only were they obligated to provide instruction about the Catholic faith, but they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith. They prayed with their students, attended Mass with the students, and prepared the children for their participation in other religious activities. Their positions did not have all the attributes of Perich’s. Their titles did not include the term \"minister,\" and they had less formal religious training, but their core responsibilities as teachers of religion were essentially the same. And both their schools expressly saw them as playing a vital part in carrying out the mission of the church, and the schools’ definition and explanation of their roles is important. In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important. III In holding that Morrissey-Berru and Biel did not fall within the Hosanna-Tabor exception, the Ninth Circuit misunderstood our decision. Both panels treated the circumstances that we found relevant in that case as checklist items to be assessed and weighed against each other in every case, and the dissent does much the same. That approach is contrary to our admonition that we were not imposing any \"rigid formula.\" 565 U. S., at 190. Instead, we called on courts to take all relevant circumstances into account and to determine whether each particular position implicated the fundamental purpose of the exception. The Ninth Circuit’s rigid test produced a distorted analysis. First, it invested undue significance in the fact that Morrissey-Berru and Biel did not have clerical titles. 769 Fed. Appx., at 460; 911 F. 3d, at 608–609; Post, at 15–16. It is true that Perich’s title included the term \"minister,\" but we never said that her title (or her reference to herself as a \"minister\") was necessary to trigger the Hosanna-Tabor exception. Instead, \"those considerations . . . merely made Perich’s case an especially easy one.\" Brief for United States as Amicus Curiae 19. Moreover, both MorrisseyBerru and Biel had titles. They were Catholic elementary school teachers, which meant that they were their students’ primary teachers of religion. The concept of a teacher of religion is loaded with religious significance. The term \"rabbi\" means teacher, and Jesus was frequently called rabbi.27 And if a more esoteric title is needed, they were both regarded as \"catechists.\"28 Second, the Ninth Circuit assigned too much weight to the fact that Morrissey-Berru and Biel had less formal religious schooling than Perich. 769 Fed. Appx., at 460–461; 911 F. 3d, at 608; post, at 16–17. The significance of formal training must be evaluated in light of the age of the students taught and the judgment of a religious institution regarding the need for formal training. The schools in question here thought that Morrissey-Berru and Biel had a sufficient understanding of Catholicism to teach their students,29 and judges have no warrant to second-guess that judgment or to impose their own credentialing requirements. Third, the St. James panel inappropriately diminished the significance of Biel’s duties because they did not evince \"close guidance and involvement\" in \"students’ spiritual lives.\" 911 F. 3d, at 609; post, at 12, 17–18. Specifically, the panel majority suggested that Biel merely taught \"religion from a book required by the school,\" \"joined\" students in prayer, and accompanied students to Mass in order to keep them \"‘quiet and in their seats.’\" 911 F. 3d, at 609. This misrepresents the record and its significance. For better or worse, many primary school teachers tie their instruction closely to textbooks, and many faith traditions prioritize teaching from authoritative texts. See Brief for InterVarsity Christian Fellowship USA et al. as Amici Curiae 26; Brief for Senator Mike Lee et al. as Amici Curiae 24–27. As for prayer, Biel prayed with her students, taught them prayers, and supervised the prayers led by students. She prepared them for Mass, accompanied them to Mass, and prayed with them there. See supra, at 8–9. In Biel’s appeal, the Ninth Circuit suggested that the Hosanna-Tabor exception should be interpreted narrowly because the ADA, 42 U. S. C. §12101 et seq., and Title VII, §2000e–2, contain provisions allowing religious employers to give preference to members of a particular faith in employing individuals to do work connected with their activities. 911 F. 3d, at 611, n. 5; post, at 2–3. But the HosannaTabor exception serves an entirely different purpose. Think of the quintessential case where a church wants to dismiss its minister for poor performance. The church’s objection in that situation is not that the minister has gone over to some other faith but simply that the minister is failing to perform essential functions in a satisfactory manner. While the Ninth Circuit treated the circumstances that we cited in Hosanna-Tabor as factors to be assessed and weighed in every case, respondents would make the governing test even more rigid. In their view, courts should begin by deciding whether the first three circumstances—a ministerial title, formal religious education, and the employee’s self-description as a minister—are met and then, in order to check the conclusion suggested by those factors, ask whether the employee performed a religious function. Brief for Respondents 20–24. For reasons already explained, there is no basis for treating the circumstances we found relevant in Hosanna-Tabor in such a rigid manner. Respondents go further astray in suggesting that an employee can never come within the Hosanna-Tabor exception unless the employee is a \"practicing\" member of the religion with which the employer is associated. Brief for Respondents 12–13, 21. In hiring a teacher to provide religious instruction, a religious school is very likely to try to select a person who meets this requirement, but insisting on this as a necessary condition would create a host of problems. As pointed out by petitioners, determining whether a person is a \"co-religionist\" will not always be easy. See Reply Brief 14 (\"Are Orthodox Jews and non-Orthodox Jews coreligionists? . . . Would Presbyterians and Baptists be similar enough? Southern Baptists and Primitive Baptists?\"). Deciding such questions would risk judicial entanglement in religious issues. Expanding the \"co-religionist\" requirement, Brief for Respondents 28–29, 44, to exclude those who no longer practice the faith would be even worse, post, at 13. Would the test depend on whether the person in question no longer considered himself or herself to be a member of a particular faith? Or would the test turn on whether the faith tradition in question still regarded the person as a member in some sense? Respondents argue that Morrissey-Berru cannot fall within the Hosanna-Tabor exception because she said in connection with her lawsuit that she was not \"a practicing Catholic,\" but acceptance of that argument would require courts to delve into the sensitive question of what it means to be a \"practicing\" member of a faith, and religious employers would be put in an impossible position. MorrisseyBerru’s employment agreements required her to attest to \"good standing\" with the church. See App. 91, 144, 154. Beyond insisting on such an attestation, it is not clear how religious groups could monitor whether an employee is abiding by all religious obligations when away from the job. Was OLG supposed to interrogate Morrissey-Berru to confirm that she attended Mass every Sunday? Respondents argue that the Hosanna-Tabor exception is not workable unless it is given a rigid structure, but we declined to adopt a \"rigid formula\" in Hosanna-Tabor, and the lower courts have been applying the exception for many years without such a formula. Here, as in Hosanna-Tabor, it is sufficient to decide the cases before us. When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow. For these reasons, the judgment of the Court of Appeals in each case is reversed, and the cases are remanded for proceedings consistent with this opinion."},
{"docket_number": "19-431", "syllabus": "The Patient Protection and Affordable Care Act of 2010 (ACA) requires covered employers to provide women with \"preventive care and screenings\" without \"any cost sharing requirements,\" and relies on Preventive Care Guidelines (Guidelines) \"supported by the Health Resources and Services Administration\" (HRSA) to determine what \"preventive care and screenings\" includes. 42 U. S. C. §300gg–13(a)(4). Those Guidelines mandate that health plans provide coverage for all Food and Drug Administration approved contraceptive methods. When the Departments of Health and Human Services, Labor, and the Treasury (Departments) incorporated the Guidelines, they also gave HRSA the discretion to exempt religious employers, such as churches, from providing contraceptive coverage. Later, the Departments also promulgated a rule accommodating qualifying religious organizations that allowed them to opt out of coverage by self-certifying that they met certain criteria to their health insurance issuer, which would then exclude contraceptive coverage from the employer’s plan and provide participants with separate payments for contraceptive services without imposing any cost-sharing requirements. Religious entities challenged the rules under the Religious Freedom Restoration Act of 1993 (RFRA). In Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682, this Court held that the contraceptive mandate substantially burdened the free exercise of closely held corporations with sincerely held religious objections to providing their employees with certain methods of contraception. And in Zubik v. Burwell, 578 U. S. ___, the Court opted to remand without deciding the RFRA question in cases challenging the self-certification accommodation so that the parties could develop an approach that would accommodate employers’ concerns while providing women full and equal coverage. Under Zubik’s direction and in light of Hobby Lobby’s holding, the Departments promulgated two interim final rules (IFRs). The first significantly expanded the church exemption to include an employer that \"objects . . . based on its sincerely held religious beliefs,\" \"to its establishing, maintaining, providing, offering, or arranging [for] coverage or payments for some or all contraceptive services.\" 82 Fed. Reg. 47812. The second created a similar \"moral exemption\" for employers with sincerely held moral objections to providing some or all forms of contraceptive coverage. The Departments requested post-promulgation comments on both IFRs. Pennsylvania sued, alleging that the IFRs were procedurally and substantively invalid under the Administrative Procedure Act (APA). After the Departments issued final rules, responding to post-promulgation comments but leaving the IFRs largely intact, New Jersey joined Pennsylvania’s suit. Together they filed an amended complaint, alleging that the rules were substantively unlawful because the Departments lacked statutory authority under either the ACA or RFRA to promulgate the exemptions. They also argued that the rules were procedurally defective because the Departments failed to comply with the APA’s notice and comment procedures. The District Court issued a preliminary nationwide injunction against the implementation of the final rules, and the Third Circuit affirmed. Held: 1. The Departments had the authority under the ACA to promulgate the religious and moral exemptions. Pp. 14–22. (a) As legal authority for both exemptions, the Departments invoke §300gg–13(a)(4), which states that group health plans must provide women with \"preventive care and screenings . . . as provided for in comprehensive guidelines supported by [HRSA].\" The pivotal phrase, \"as provided for,\" grants sweeping authority to HRSA to define the preventive care that applicable health plans must cover. That same grant of authority empowers it to identify and create exemptions from its own Guidelines. The \"fundamental principle of statutory interpretation that ‘absent provision[s] cannot be supplied by the courts,’ \" Rotkiske v. Klemm, 589 U. S. ___, ___ applies not only to adding terms not found in the statute, but also to imposing limits on an agency’s discretion that are not supported by the text, see Watt v. Energy Action Ed. Foundation, 454 U. S. 151, 168. Concerns that the exemptions thwart Congress’ intent by making it significantly harder for interested women to obtain seamless access to contraception without cost-sharing cannot justify supplanting the text’s plain meaning. Even if such concerns are legitimate, they are more properly directed at the regulatory mechanism that Congress put in place. Pp. 14–18. (b) Because the ACA provided a basis for both exemptions, the Court need not decide whether RFRA independently compelled the Departments’ solution. However, the argument that the Departments could not consider RFRA at all is without merit. It is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA. The ACA does not explicitly exempt RFRA, and the regulations implementing the contraceptive mandate qualify as \"Federal law\" or \"the implementation of [Federal] law\" under RFRA. §2000bb– 3(a). Additionally, this Court stated in Hobby Lobby that the mandate violated RFRA as applied to entities with complicity-based objections. And both Hobby Lobby and Zubik instructed the Departments to consider RFRA going forward. Moreover, in light of the basic requirements of the rulemaking process, the Departments’ failure to discuss RFRA at all when formulating their solution would make them susceptible to claims that the rules were arbitrary and capricious for failing to consider an important aspect of the problem. Pp. 19–22. 2. The rules promulgating the exemptions are free from procedural defects. Pp. 22–26. (a) Respondents claim that because the final rules were preceded by a document entitled \"Interim Final Rules with Request for Comments\" instead of \"General Notice of Proposed Rulemaking,\" they are procedurally invalid under the APA. The IFRs’ request for comments readily satisfied the APA notice requirements. And even assuming that the APA requires an agency to publish a document entitled \"notice of proposed rulemaking,\" there was no \"prejudicial error\" here, 5 U. S. C. §706. Pp. 22–24. (b) Pointing to the fact that the final rules made only minor alterations to the IFRs, respondents also contend that the final rules are procedurally invalid because nothing in the record suggests that the Departments maintained an open mind during the post-promulgation process. The \"open-mindedness\" test has no basis in the APA. Each of the APA’s procedural requirements was satisfied: The IFRs provided sufficient notice, §553(b); the Departments \"g[a]ve interested persons an opportunity to participate in the rule making through submission of written data, views or arguments,\" §553(c); the final rules contained \"a concise general statement of their basis and purpose,\" ibid.; and they were published more than 30 days before they became effective, §553(d). Pp. 24–26. 930 F. 3d 543, reversed and remanded.", "opinion": "In these consolidated cases, we decide whether the Government created lawful exemptions from a regulatory requirement implementing the Patient Protection and Affordable Care Act of 2010 (ACA), 124 Stat. 119. The requirement at issue obligates certain employers to provide contraceptive coverage to their employees through their group health plans. Though contraceptive coverage is not required by (or even mentioned in) the ACA provision at issue, the Government mandated such coverage by promulgating interim final rules (IFRs) shortly after the ACA’s passage. This requirement is known as the contraceptive mandate. After six years of protracted litigation, the Departments of Health and Human Services, Labor, and the Treasury (Departments)—which jointly administer the relevant ACA provision1—exempted certain employers who have religious and conscientious objections from this agency-created mandate. The Third Circuit concluded that the Departments lacked statutory authority to promulgate these exemptions and affirmed the District Court’s nationwide preliminary injunction. This decision was erroneous. We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections. We accordingly reverse the Third Circuit’s judgment and remand with instructions to dissolve the nationwide preliminary injunction. I The ACA’s contraceptive mandate—a product of agency regulation—has existed for approximately nine years. Litigation surrounding that requirement has lasted nearly as long. In light of this extensive history, we begin by summarizing the relevant background. A The ACA requires covered employers to offer \"a group health plan or group health insurance coverage\" that provides certain \"minimum essential coverage.\" 26 U. S. C. §5000A(f )(2); §§4980H(a), (c)(2). Employers who do not comply face hefty penalties, including potential fines of $100 per day for each affected employee. §§4980D(a)–(b); see also Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682, 696–697 (2014). These cases concern regulations promulgated under a provision of the ACA that requires covered employers to provide women with \"preventive care and screenings\" without \"any cost sharing requirements.\" U. S. C. §300gg–13(a)(4).2 The statute does not define \"preventive care and screenings,\" nor does it include an exhaustive or illustrative list of such services. Thus, the statute itself does not explicitly require coverage for any specific form of \"preventive care.\" Hobby Lobby, 573 U. S., at 697. Instead, Congress stated that coverage must include \"such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration\" (HRSA), an agency of the Department of Health and Human Services (HHS). §300gg–13(a)(4). At the time of the ACA’s enactment, these guidelines were not yet written. As a result, no specific forms of preventive care or screenings were (or could be) referred to or incorporated by reference. Soon after the ACA’s passage, the Departments began promulgating rules related to §300gg–13(a)(4). But in doing so, the Departments did not proceed through the notice and comment rulemaking process, which the Administrative Procedure Act (APA) often requires before an agency’s regulation can \"have the force and effect of law.\" Perez v. Mortgage Bankers Assn., 575 U. S. 92, 96 (2015) (internal quotation marks omitted); see also 5 U. S. C. §553. Instead, the Departments invoked the APA’s good cause exception, which permits an agency to dispense with notice and comment and promulgate an IFR that carries immediate legal force. §553(b)(3)(B). The first relevant IFR, promulgated in July 2010, primarily focused on implementing other aspects of §300gg–13. Fed. Reg. 41728. The IFR indicated that HRSA planned to develop its Preventive Care Guidelines (Guidelines) by August 2011. Ibid. However, it did not mention religious exemptions or accommodations of any kind. As anticipated, HRSA released its first set of Guidelines in August 2011. The Guidelines were based on recommendations compiled by the Institute of Medicine (now called the National Academy of Medicine), \"a nonprofit group of volunteer advisers.\" Hobby Lobby, 573 U. S., at 697. The Guidelines included the contraceptive mandate, which required health plans to provide coverage for all contraceptive methods and sterilization procedures approved by the Food and Drug Administration as well as related education and counseling. 77 Fed. Reg. 8725 (2012). The same day the Guidelines were issued, the Departments amended the 2010 IFR. 76 Fed. Reg. 46621 (2011). When the 2010 IFR was originally published, the Departments began receiving comments from numerous religious employers expressing concern that the Guidelines would \"impinge upon their religious freedom\" if they included contraception. Id., at 46623. As just stated, the Guidelines ultimately did contain contraceptive coverage, thus making the potential impact on religious freedom a reality. In the amended IFR, the Departments determined that \"it [was] appropriate that HRSA . . . tak[e] into account the [mandate’s] effect on certain religious employers\" and concluded that HRSA had the discretion to do so through the creation of an exemption. Ibid. The Departments then determined that the exemption should cover religious employers, and they set out a four-part test to identify which employers qualified. The last criterion required the entity to be a church, an integrated auxiliary, a convention or association of churches, or \"the exclusively religious activities of any religious order.\" Ibid. HRSA created an exemption for these employers the same day. 78 Fed. Reg. 39871 (2013). Because of the narrow focus on churches, this first exemption is known as the church exemption. The Guidelines were scheduled to go into effect for plan years beginning on August 1, 2012. 77 Fed. Reg. 8725– 8726. But in February 2012, before the Guidelines took effect, the Departments promulgated a final rule that temporarily prevented the Guidelines from applying to certain religious nonprofits. Specifically, the Departments stated their intent to promulgate additional rules to \"accommodat[e] non-exempted, non-profit organizations’ religious objections to covering contraceptive services.\" Id., at 8727. Until that rulemaking occurred, the 2012 rule also provided a temporary safe harbor to protect such employers. Ibid. The safe harbor covered nonprofits \"whose plans have consistently not covered all or the same subset of contraceptive services for religious reasons.\"3 Thus, the nonprofits who availed themselves of this safe harbor were not subject to the contraceptive mandate when it first became effective. The Departments promulgated another final rule in 2013 that is relevant to these cases in two ways. First, after reiterating that §300gg–13(a)(4) authorizes HRSA \"to issue guidelines in a manner that exempts group health plans established or maintained by religious employers,\" the Departments \"simplif[ied]\" and \"clarif[ied]\" the definition of a religious employer. 78 Fed. Reg. 39873.4 Second, pursuant to that same authority, the Departments provided the anticipated accommodation for eligible religious organizations, which the regulation defined as organizations that \"(1) [o]ppos[e] providing coverage for some or all of the contraceptive services . . . on account of religious objections; (2) [are] organized and operat[e] as . . . nonprofit entit[ies]; (3) hol[d] [themselves] out as . . . religious organization[s]; and (4) self-certif[y] that [they] satisf[y] the first three criteria.\" Id., at 39874. The accommodation required an eligible organization to provide a copy of the self-certification form to its health insurance issuer, which in turn would exclude contraceptive coverage from the group health plan and provide payments to beneficiaries for contraceptive services separate from the health plan. Id., at 39878. The Departments stated that the accommodation aimed to \"protec[t]\" religious organizations \"from having to contract, arrange, pay, or refer for [contraceptive] coverage\" in a way that was consistent with and did not violate the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq. 78 Fed. Reg. 39871, 39886– 39887. This accommodation is referred to as the self-certification accommodation. B Shortly after the Departments promulgated the 2013 final rule, two religious nonprofits run by the Little Sisters of the Poor (Little Sisters) challenged the self-certification accommodation. The Little Sisters \"are an international congregation of Roman Catholic women religious\" who have operated homes for the elderly poor in the United States since 1868. See Mission Statement: Little Sisters of the Poor, http://www.littlesistersofthepoor.org/mission-statement. They feel called by their faith to care for their elderly residents regardless of \"faith, finances, or frailty.\" Brief for Residents and Families of Residents at Homes of the Little Sisters of the Poor as Amici Curiae 14. The Little Sisters endeavor to treat all residents \"as if they were Jesus [Christ] himself, cared for as family, and treated with dignity until God calls them to his home.\" Complaint ¶14 in Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Sebelius, No. 1:13–cv–02611 (D Colo.), p. 5 (Complaint). Consistent with their Catholic faith, the Little Sisters hold the religious conviction \"that deliberately avoiding reproduction through medical means is immoral.\" Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 794 F. 3d 1151, 1167 (CA10 2015). They challenged the selfcertification accommodation, claiming that completing the certification form would force them to violate their religious beliefs by \"tak[ing] actions that directly cause others to provide contraception or appear to participate in the Departments’ delivery scheme.\" Id., at 1168. As a result, they alleged that the self-certification accommodation violated RFRA. Under RFRA, a law that substantially burdens the exercise of religion must serve \"a compelling governmental interest\" and be \"the least restrictive means of furthering that compelling governmental interest.\" §§2000bb–1(a)–(b). The Court of Appeals disagreed that the self-certification accommodation substantially burdened the Little Sisters’ free exercise rights and thus rejected their RFRA claim. Little Sisters, 794 F. 3d, at 1160. The Little Sisters were far from alone in raising RFRA challenges to the self-certification accommodation. Religious nonprofit organizations and educational institutions across the country filed a spate of similar lawsuits, most resulting in rulings that the accommodation did not violate RFRA. See, e.g., East Texas Baptist Univ. v. Burwell, 793 F. 3d 449 (CA5 2015); Geneva College v. Secretary, U. S. Dept. of Health and Human Servs., 778 F. 3d 422 (CA3 2015); Priests for Life v. United States Dept. of Health and Human Servs., 772 F. 3d 229 (CADC 2014); Michigan Catholic Conference v. Burwell, 755 F. 3d 372 (CA6 2014); University of Notre Dame v. Sebelius, 743 F. 3d 547 (CA7 2014); but see Sharpe Holdings, Inc. v. United States Dept. of Health and Human Servs., 801 F. 3d 927 (CA8 2015); Dordt College v. Burwell, 801 F. 3d 946 (CA8 2015). We granted certiorari in cases from four Courts of Appeals to decide the RFRA question. Zubik v. Burwell, 578 U. S. ___, ___ (2016) (per curiam). Ultimately, however, we opted to remand the cases without deciding that question. In supplemental briefing, the Government had \"confirm[ed]\" that \"‘contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any . . . notice from petitioners.’\" Id., at ___ (slip op., at 3). Petitioners, for their part, had agreed that such an approach would not violate their free exercise rights. Ibid. Accordingly, because all parties had accepted that an alternative approach was \"feasible,\" ibid., we directed the Government to \"accommodat[e] petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage,\" id., at ___ (slip op., at 4) (internal quotation marks omitted). C Zubik was not the only relevant ruling from this Court about the contraceptive mandate. As the Little Sisters and numerous others mounted their challenges to the selfcertification accommodation, a host of other entities challenged the contraceptive mandate itself as a violation of RFRA. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114 (CA10 2013) (en banc); Korte v. Sebelius, 735 F. 3d 654 (CA7 2013); Gilardi v. United States Dept. of Health and Human Servs., 733 F. 3d 1208 (CADC 2013); Conestoga Wood Specialties Corp. v. Secretary of U. S. Dept. of Health and Human Servs., 724 F. 3d 377 (CA3 2013); Autocam Corp. v. Sebelius, 730 F. 3d 618 (CA6 2013). This Court granted certiorari in two cases involving three closely held corporations to decide whether the mandate violated RFRA. Hobby Lobby, 573 U. S. 682. The individual respondents in Hobby Lobby opposed four methods of contraception covered by the mandate. They sincerely believed that human life begins at conception and that, because the challenged methods of contraception risked causing the death of a human embryo, providing those methods of contraception to employees would make the employers complicit in abortion. Id., at 691, 720. We held that the mandate substantially burdened respondents’ free exercise, explaining that \"[if] the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price.\" Id., at 691. \"If these consequences do not amount to a substantial burden,\" we stated, \"it is hard to see what would.\" Ibid. We also held that the mandate did not utilize the least restrictive means, citing the self-certification accommodation as a less burdensome alternative. Id., at 730–731. Thus, as the Departments began the task of reformulating rules related to the contraceptive mandate, they did so not only under Zubik’s direction to accommodate religious exercise, but also against the backdrop of Hobby Lobby’s pronouncement that the mandate, standing alone, violated RFRA as applied to religious entities with complicity-based objections. D In 2016, the Departments attempted to strike the proper balance a third time, publishing a request for information on ways to comply with Zubik. 81 Fed. Reg. 47741. This attempt proved futile, as the Departments ultimately concluded that \"no feasible approach\" had been identified. Dept. of Labor, FAQs About Affordable Care Act Implementation Part 36, p. 4 (2017). The Departments maintained their position that the self-certification accommodation was consistent with RFRA because it did not impose a substantial burden and, even if it did, it utilized the least restrictive means of achieving the Government’s interests. Id., at 4– 5. In 2017, the Departments tried yet again to comply with Zubik, this time by promulgating the two IFRs that served as the impetus for this litigation. The first IFR significantly broadened the definition of an exempt religious employer to encompass an employer that \"objects . . . based on its sincerely held religious beliefs,\" \"to its establishing, maintaining, providing, offering, or arranging [for] coverage or payments for some or all contraceptive services.\" 82 Fed. Reg. 47812 (2017). Among other things, this definition included for-profit and publicly traded entities. Because they were exempt, these employers did not need to participate in the accommodation process, which nevertheless remained available under the IFR. Id., at 47806. As with their previous regulations, the Departments once again invoked §300gg–13(a)(4) as authority to promulgate this \"religious exemption,\" stating that it \"include[d] the ability to exempt entities from coverage requirements announced in HRSA’s Guidelines.\" Id., at 47794. Additionally, the Departments announced for the first time that RFRA compelled the creation of, or at least provided the discretion to create, the religious exemption. Id., at 47800– 47806. As the Departments explained: \"We know from Hobby Lobby that, in the absence of any accommodation, the contraceptive-coverage requirement imposes a substantial burden on certain objecting employers. We know from other lawsuits and public comments that many religious entities have objections to complying with the [self-certification] accommodation based on their sincerely held religious beliefs.\" Id., at 47806. The Departments \"believe[d] that the Court’s analysis in Hobby Lobby extends, for the purposes of analyzing a substantial burden, to the burdens that an entity faces when it religiously opposes participating in the [self-certification] accommodation process.\" Id., at 47800. They thus \"conclude[d] that it [was] appropriate to expand the exemption to other . . . organizations with sincerely held religious beliefs opposed to contraceptive coverage.\" Id., at 47802; see also id., at 47810–47811. The second IFR created a similar \"moral exemption\" for employers—including nonprofits and for-profits with no publicly traded components—with \"sincerely held moral\" objections to providing some or all forms of contraceptive coverage. Id., at 47850, 47861–47862. Citing congressional enactments, precedents from this Court, agency practice, and state laws that provided for conscience protections, id., at 47844–47847, the Departments invoked their authority under the ACA to create this exemption, id., at 47844. The Departments requested post-promulgation comments on both IFRs. Id., at 47813, 47854. E Within a week of the 2017 IFRs’ promulgation, the Commonwealth of Pennsylvania filed an action seeking declaratory and injunctive relief. Among other claims, it alleged that the IFRs were procedurally and substantively invalid under the APA. The District Court held that the Commonwealth was likely to succeed on both claims and granted a preliminary nationwide injunction against the IFRs. The Federal Government appealed. While that appeal was pending, the Departments issued rules finalizing the 2017 IFRs. See 83 Fed. Reg. 57536 (2018); 83 Fed. Reg. 57592, codified at 45 CFR pt. 147 (2018). Though the final rules left the exemptions largely intact, they also responded to post-promulgation comments, explaining their reasons for neither narrowing nor expanding the exemptions beyond what was provided for in the IFRs. See 83 Fed. Reg. 57542–57545, 57598–57603. The final rule creating the religious exemption also contained a lengthy analysis of the Departments’ changed position regarding whether the self-certification process violated RFRA. Id., at 57544–57549. And the Departments explained that, in the wake of the numerous lawsuits challenging the self-certification accommodation and the failed attempt to identify alternative accommodations after the 2016 request for information, \"an expanded exemption rather than the existing accommodation is the most appropriate administrative response to the substantial burden identified by the Supreme Court in Hobby Lobby.\" Id., at 57544–57545. After the final rules were promulgated, the State of New Jersey joined Pennsylvania’s suit and, together, they filed an amended complaint. As relevant, the States—respondents here—once again challenged the rules as substantively and procedurally invalid under the APA. They alleged that the rules were substantively unlawful because the Departments lacked statutory authority under either the ACA or RFRA to promulgate the exemptions. Respondents also asserted that the IFRs were not adequately justified by good cause, meaning that the Departments impermissibly used the IFR procedure to bypass the APA’s notice and comment procedures. Finally, respondents argued that the purported procedural defects of the IFRs likewise infected the final rules. The District Court issued a nationwide preliminary injunction against the implementation of the final rules the same day the rules were scheduled to take effect. The Federal Government appealed, as did one of the homes operated by the Little Sisters, which had in the meantime intervened in the suit to defend the religious exemption.5 The appeals were consolidated with the previous appeal, which had been stayed. The Third Circuit affirmed. In its view, the Departments lacked authority to craft the exemptions under either statute. The Third Circuit read 42 U. S. C. §300gg–13(a)(4) as empowering HRSA to determine which services should be included as preventive care and screenings, but not to carve out exemptions from those requirements. It also concluded that RFRA did not compel or permit the religious exemption because, under Third Circuit precedent that was vacated and remanded in Zubik, the Third Circuit had concluded that the self-certification accommodation did not impose a substantial burden on free exercise. As for respondents’ procedural claim, the court held that the Departments lacked good cause to bypass notice and comment when promulgating the 2017 IFRs. In addition, the court determined that, because the IFRs and final rules were \"virtually identical,\" \"[t]he notice and comment exercise surrounding the Final Rules [did] not reflect any real open-mindedness.\" Pennsylvania v. President of United States, 930 F. 3d 543, 568–569 (2019). Though it rebuked the Departments for their purported attitudinal deficiencies, the Third Circuit did not identify any specific public comments to which the agency did not appropriately respond. Id., at 569, n. 24. We granted certiorari. 589 U. S. ___ (2020). II Respondents contend that the 2018 final rules providing religious and moral exemptions to the contraceptive mandate are both substantively and procedurally invalid. We begin with their substantive argument that the Departments lacked statutory authority to promulgate the rules. A The Departments invoke 42 U. S. C. §300gg–13(a)(4) as legal authority for both exemptions. This provision of the ACA states that, \"with respect to women,\" \"[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide . . . such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by [HRSA].\" The Departments maintain, as they have since 2011, that the phrase \"as provided for\" allows HRSA both to identify what preventive care and screenings must be covered and to exempt or accommodate certain employers’ religious objections. See 83 Fed. Reg. 57540–57541; see also post, at 3 (KAGAN, J., concurring in judgment). They also argue that, as with the church exemption, their role as the administering agencies permits them to guide HRSA in its discretion by \"defining the scope of permissible exemptions and accommodations for such guidelines.\" 82 Fed. Reg. 47794. Respondents, on the other hand, contend that §300gg–13(a)(4) permits HRSA to only list the preventive care and screenings that health plans \"shall . . . provide,\" not to exempt entities from those identified services. Because that asserted limitation is found nowhere in the statute, we agree with the Departments. \"Our analysis begins and ends with the text.\" Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U. S. 545, 553 (2014). Here, the pivotal phrase is \"as provided for.\" To \"provide\" means to supply, furnish, or make available. See Webster’s Third New International Dictionary 1827 (2002) (Webster’s Third); American Heritage Dictionary 1411 (4th ed. 2000); 12 Oxford English Dictionary 713 (2d ed. 1989). And, as the Departments explained, the word \"as\" functions as an adverb modifying \"provided,\" indicating \"the manner in which\" something is done. 83 Fed. Reg. 57540. See also Webster’s Third 125; 1 Oxford English Dictionary, at 673; American Heritage Dictionary 102 (5th ed. 2011). On its face, then, the provision grants sweeping authority to HRSA to craft a set of standards defining the preventive care that applicable health plans must cover. But the statute is completely silent as to what those \"comprehensive guidelines\" must contain, or how HRSA must go about creating them. The statute does not, as Congress has done in other statutes, provide an exhaustive or illustrative list of the preventive care and screenings that must be included. See, e.g., 18 U. S. C. §1961(1); 28 U. S. C. §1603(a). It does not, as Congress did elsewhere in the same section of the ACA, set forth any criteria or standards to guide HRSA’s selections. See, e.g., 42 U. S. C. §300gg–13(a)(3) (requiring \"evidence-informed preventive care and screenings\" (emphasis added)); §300gg–13(a)(1) (\"evidence-based items or services\"). It does not, as Congress has done in other contexts, require that HRSA consult with or refrain from consulting with any party in the formulation of the Guidelines. See, e.g., 16 U. S. C. §1536(a)(1); 23 U. S. C. §138. This means that HRSA has virtually unbridled discretion to decide what counts as preventive care and screenings. But the same capacious grant of authority that empowers HRSA to make these determinations leaves its discretion equally unchecked in other areas, including the ability to identify and create exemptions from its own Guidelines. Congress could have limited HRSA’s discretion in any number of ways, but it chose not to do so. See Ali v. Federal Bureau of Prisons, 552 U. S. 214, 227 (2008); see also Rotkiske v. Klemm, 589 U. S. ___, ___ (2019) (slip op., at 6); Husted v. A. Philip Randolph Institute, 584 U. S. ___, ___ (2018) (slip op., at 16). Instead, it enacted \"‘expansive language offer[ing] no indication whatever’\" that the statute limits what HRSA can designate as preventive care and screenings or who must provide that coverage. Ali, 552 U. S., at 219–220 (quoting Harrison v. PPG Industries, Inc., 446 U. S. 578, 589 (1980)). \"It is a fundamental principle of statutory interpretation that ‘absent provision[s] cannot be supplied by the courts.’\" Rotkiske, 589 U. S., at ___ (slip op., at 5) (quoting A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 94 (2012)); Nichols v. United States, 578 U. S. ___, ___ (2016) (slip op., at 6). This principle applies not only to adding terms not found in the statute, but also to imposing limits on an agency’s discretion that are not supported by the text. See Watt v. Energy Action Ed. Foundation, 454 U. S. 151, 168 (1981). By introducing a limitation not found in the statute, respondents ask us to alter, rather than to interpret, the ACA. See Nichols, 578 U. S., at ___ (slip op., at 6). By its terms, the ACA leaves the Guidelines’ content to the exclusive discretion of HRSA. Under a plain reading of the statute, then, we conclude that the ACA gives HRSA broad discretion to define preventive care and screenings and to create the religious and moral exemptions. The dissent resists this conclusion, asserting that the Departments’ interpretation thwarts Congress’ intent to provide contraceptive coverage to the women who are interested in receiving such coverage. See post, at 1, 21 (opinion of GINSBURG, J.). It also argues that the exemptions will make it significantly harder for interested women to obtain seamless access to contraception without cost sharing, post, at 15–17, which we have previously \"assume[d]\" is a compelling governmental interest, Hobby Lobby, 573 U. S., at 728; but see post, at 10–12 (ALITO, J., concurring). The Departments dispute that women will be adversely impacted by the 2018 exemptions. 82 Fed. Reg. 47805. Though we express no view on this disagreement, it bears noting that such a policy concern cannot justify supplanting the text’s plain meaning. See Gitlitz v. Commissioner, 531 U. S. 206, 220 (2001). \"It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.\" Lewis v. Chicago, 560 U. S. 205, 215 (2010). Moreover, even assuming that the dissent is correct as an empirical matter, its concerns are more properly directed at the regulatory mechanism that Congress put in place to protect this assumed governmental interest. As even the dissent recognizes, contraceptive coverage is mentioned nowhere in §300gg–13(a)(4), and no language in the statute itself even hints that Congress intended that contraception should or must be covered. See post, at 4–5 (citing legislative history and amicus briefs). Thus, contrary to the dissent’s protestations, it was Congress, not the Departments, that declined to expressly require contraceptive coverage in the ACA itself. See 83 Fed. Reg. 57540. And, it was Congress’ deliberate choice to issue an extraordinarily \"broad general directiv[e]\" to HRSA to craft the Guidelines, without any qualifications as to the substance of the Guidelines or whether exemptions were permissible. Mistretta v. United States, 488 U. S. 361, 372 (1989). Thus, it is Congress, not the Departments, that has failed to provide the protection for contraceptive coverage that the dissent seeks.8 No party has pressed a constitutional challenge to the breadth of the delegation involved here. Cf. Gundy v. United States, 588 U. S. ___ (2019). The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions. The Departments also contend, consistent with the reasoning in the 2017 IFR and the 2018 final rule establishing the religious exemption, that RFRA independently compelled the Departments’ solution or that it at least authorized it. In light of our holding that the ACA provided a basis for both exemptions, we need not reach these arguments. We do, however, address respondents’ argument that the Departments could not even consider RFRA as they formulated the religious exemption from the contraceptive mandate. Particularly in the context of these cases, it was appropriate for the Departments to consider RFRA. As we have explained, RFRA \"provide[s] very broad protection for religious liberty.\" Hobby Lobby, 573 U. S., at 693. In RFRA’s congressional findings, Congress stated that \"governments should not substantially burden religious exercise,\" a right described by RFRA as \"unalienable.\" 42 U. S. C. §§2000bb(a)(1), (3). To protect this right, Congress provided that the \"[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability\" unless \"it demonstrates that application of the burden . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.\" §§2000bb–1(a)–(b). Placing Congress’ intent beyond dispute, RFRA specifies that it \"applies to all Federal law, and the implementation of that law, whether statutory or otherwise.\" §2000bb–3(a). RFRA also permits Congress to exclude statutes from RFRA’s protections. §2000bb–3(b). It is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA. The ACA does not explicitly exempt RFRA, and the regulations implementing the contraceptive mandate qualify as \"Federal law\" or \"the implementation of [Federal] law.\" §2000bb– 3(a); cf. Chrysler Corp. v. Brown, 441 U. S. 281, 297–298 (1979). Additionally, we expressly stated in Hobby Lobby that the contraceptive mandate violated RFRA as applied to entities with complicity-based objections. 573 U. S., at 736. Thus, the potential for conflict between the contraceptive mandate and RFRA is well settled. Against this backdrop, it is unsurprising that RFRA would feature prominently in the Departments’ discussion of exemptions that would not pose similar legal problems. Moreover, our decisions all but instructed the Departments to consider RFRA going forward. For instance, though we held that the mandate violated RFRA in Hobby Lobby, we left it to the Federal Government to develop and implement a solution. At the same time, we made it abundantly clear that, under RFRA, the Departments must accept the sincerely held complicity-based objections of religious entities. That is, they could not \"tell the plaintiffs that their beliefs are flawed\" because, in the Departments’ view, \"the connection between what the objecting parties must do . . . and the end that they find to be morally wrong . . . is simply too attenuated.\" Hobby Lobby, 573 U. S., at 723–724. Likewise, though we did not decide whether the self-certification accommodation ran afoul of RFRA in Zubik, we directed the parties on remand to \"accommodat[e]\" the free exercise rights of those with complicity-based objections to the self-certification accommodation. 578 U. S., at ___ (slip op., at 4). It is hard to see how the Departments could promulgate rules consistent with these decisions if they did not overtly consider these entities’ rights under RFRA. This is especially true in light of the basic requirements of the rulemaking process. Our precedents require final rules to \"articulate a satisfactory explanation for [the] action including a rational connection between the facts found and the choice made.\" Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983) (internal quotation marks omitted). This requirement allows courts to assess whether the agency has promulgated an arbitrary and capricious rule by \"entirely fail[ing] to consider an important aspect of the problem [or] offer[ing] an explanation for its decision that runs counter to the evidence before [it].\" Ibid.; see also Department of Commerce v. New York, 588 U. S. ___, ___–___ (2019) (BREYER, J., concurring in part and dissenting in part) (slip op., at 3–4); Genuine Parts Co. v. EPA, 890 F. 3d 304, 307 (CADC 2018); Pacific Coast Federation of Fishermen’s Assns. v. United States Bur. of Reclamation, 426 F. 3d 1082, 1094 (CA9 2005). Here, the Departments were aware that Hobby Lobby held the mandate unlawful as applied to religious entities with complicity-based objections. 82 Fed. Reg. 47799; 83 Fed. Reg. 57544–57545. They were also aware of Zubik’s instructions. 82 Fed. Reg. 47799. And, aside from our own decisions, the Departments were mindful of the RFRA concerns raised in \"public comments and. . . court filings in dozens of cases—encompassing hundreds of organizations.\" Id., at 47802; see also id., at 47806. If the Departments did not look to RFRA’s requirements or discuss RFRA at all when formulating their solution, they would certainly be susceptible to claims that the rules were arbitrary and capricious for failing to consider an important aspect of the problem.12 Thus, respondents’ argument that the Departments erred by looking to RFRA as a guide when framing the religious exemption is without merit. III Because we hold that the Departments had authority to promulgate the exemptions, we must next decide whether the 2018 final rules are procedurally invalid. Respondents present two arguments on this score. Neither is persuasive. A Unless a statutory exception applies, the APA requires agencies to publish a notice of proposed rulemaking in the Federal Register before promulgating a rule that has legal force. See 5 U. S. C. §553(b). Respondents point to the fact that the 2018 final rules were preceded by a document entitled \"Interim Final Rules with Request for Comments,\" not a document entitled \"General Notice of Proposed Rulemaking.\" They claim that since this was insufficient to satisfy §553(b)’s requirement, the final rules were procedurally invalid. Respondents are incorrect. Formal labels aside, the rules contained all of the elements of a notice of proposed rulemaking as required by the APA. The APA requires that the notice of proposed rulemaking contain \"reference to the legal authority under which the rule is proposed\" and \"either the terms or substance of the proposed rule or a description of the subjects and issues involved.\" §§553(b)(2)–(3). The request for comments in the 2017 IFRs readily satisfies these requirements. That request detailed the Departments’ view that they had legal authority under the ACA to promulgate both exemptions, 82 Fed. Reg. 47794, 47844, as well as authority under RFRA to promulgate the religious exemption, id., at 47800– 47806. And respondents do not—and cannot—argue that the IFRs failed to air the relevant issues with sufficient detail for respondents to understand the Departments’ position. See supra, at 10–11. Thus, the APA notice requirements were satisfied. Even assuming that the APA requires an agency to publish a document entitled \"notice of proposed rulemaking\" when the agency moves from an IFR to a final rule, there was no \"prejudicial error\" here. §706. We have previously noted that the rule of prejudicial error is treated as an \"administrative law . . . harmless error rule,\" National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 659– 660 (2007) (internal quotation marks omitted). Here, the Departments issued an IFR that explained its position in fulsome detail and \"provide[d] the public with an opportunity to comment on whether [the] regulations . . . should be made permanent or subject to modification.\" 82 Fed. Reg. 47815; see also id., at 47852, 47855. Respondents thus do not come close to demonstrating that they experienced any harm from the title of the document, let alone that they have satisfied this harmless error rule. \"The object [of notice and comment], in short, is one of fair notice,\" Long Island Care at Home, Ltd. v. Coke, 551 U. S. 158, 174 (2007), and respondents certainly had such notice here. Because the IFR complied with the APA’s requirements, this claim fails.13 B Next, respondents contend that the 2018 final rules are procedurally invalid because \"nothing in the record signal[s]\" that the Departments \"maintained an open mind throughout the [post-promulgation] process.\" Brief for Respondents 27. As evidence for this claim, respondents point to the fact that the final rules made only minor alterations to the IFRs, leaving their substance unchanged. The Third Circuit applied this \"open-mindedness\" test, concluding that because the final rules were \"virtually identical\" to the IFRs, the Departments lacked the requisite \"flexible and open-minded attitude\" when they promulgated the final rules. 930 F. 3d, at 569 (internal quotation marks omitted). We decline to evaluate the final rules under the openmindedness test. We have repeatedly stated that the text of the APA provides the \"‘maximum procedural requirements’\" that an agency must follow in order to promulgate a rule. Perez, 575 U. S., at 100 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 524 (1978)). Because the APA \"sets forth the full extent of judicial authority to review executive agency action for procedural correctness,\" FCC v. Fox Television Stations, Inc., 556 U. S. 502, 513 (2009), we have repeatedly rejected courts’ attempts to impose \"judge-made procedur[es]\" in addition to the APA’s mandates, Perez, 575 U. S., at 102; see also Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654–655 (1990); Vermont Yankee, 435 U. S., at 549. And like the procedures that we have held invalid, the open-mindedness test violates the \"general proposition that courts are not free to impose upon agencies specific procedural requirements that have no basis in the APA.\" LTV Corp., 496 U. S., at 654. Rather than adopting this test, we focus our inquiry on whether the Departments satisfied the APA’s objective criteria, just as we have in previous cases. We conclude that they did. Section 553(b) obligated the Departments to provide adequate notice before promulgating a rule that has legal force. As explained supra, at 22–23, the IFRs provided sufficient notice. Aside from these notice requirements, the APA mandates that agencies \"give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments,\" §553(c); states that the final rules must include \"a concise general statement of their basis and purpose,\" ibid.; and requires that final rules must be published 30 days before they become effective, §553(d). The Departments complied with each of these statutory procedures. They \"request[ed] and encourag[ed] public comments on all matters addressed\" in the rules—i.e., the basis for the Departments’ legal authority, the rationales for the exemptions, and the detailed discussion of the exemptions’ scope. 82 Fed. Reg. 47813, 47854. They also gave interested parties 60 days to submit comments. Id., at 47792, 47838. The final rules included a concise statement of their basis and purpose, explaining that the rules were \"necessary to protect sincerely held\" moral and religious objections and summarizing the legal analysis supporting the exemptions. 83 Fed. Reg. 57592; see also id., at 57537– 57538. Lastly, the final rules were published on November 15, 2018, but did not become effective until January 14, 2019—more than 30 days after being published. Id., at 57536, 57592. In sum, the rules fully complied with \"‘the maximum procedural requirements [that] Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.’\" Perez, 575 U. S., at 102 (quoting Vermont Yankee, 435 U. S., at 524). Accordingly, respondents’ second procedural challenge also fails. For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother. \"[T]hey commit to constantly living out a witness that proclaims the unique, inviolable dignity of every person, particularly those whom others regard as weak or worthless.\" Complaint ¶14. But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision— have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs. After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate. We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects. Therefore, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion."},
{"docket_number": "21-511", "syllabus": "Respondent Raymond Twyford was convicted by an Ohio jury of aggravated murder and other charges and was sentenced to death. The Ohio appellate courts affirmed his conviction and sentence. Twyford then sought state postconviction relief, claiming that his trial counsel was ineffective for failing to present evidence of a head injury Twyford sustained as a teenager. The Ohio courts rejected his claim, concluding that trial counsel had simply presented a competing psychological theory for Twyford’s actions. Twyford then filed a petition for federal habeas relief. The District Court dismissed most of Twyford’s claims as procedurally defaulted but allowed a few to proceed. He then moved for an order compelling the State to transport him to a medical facility, arguing that neurological testing would plausibly lead to the development of evidence to support his claim that he suffers neurological defects. The District Court granted Twyford’s motion under the All Writs Act, which authorizes federal courts to \"issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.\" 28 U. S. C. §1651(a). The Court of Appeals affirmed. Both courts concluded that it was unnecessary to consider the admissibility of any resulting evidence prior to ordering the State to transport Twyford to gather it. Held: A transportation order that allows a prisoner to search for new evidence is not \"necessary or appropriate in aid of\" a federal court’s adjudication of a habeas corpus action when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief. Pp. 4–11. (a) The State argues that the All Writs Act does not authorize the issuance of transportation orders for medical testing at all. The State also argues that the order issued in this case was not \"necessary or appropriate in aid of\" the District Court’s jurisdiction because Twyford failed to show that the evidence he hoped to find would be useful to his habeas case. Because this Court agrees with the State’s second argument, it does not address the first. In habeas cases such as this, the Antiterrorism and Effective Death Penalty Act (AEDPA) restricts a federal court’s authority to grant relief. AEDPA provides that a federal habeas court cannot grant relief in a case adjudicated on the merits in state court unless the state court (1) contradicted or unreasonably applied this Court’s precedents, or (2) handed down a decision \"based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.\" §§2254(d)(1)–(2). AEDPA also restricts the ability of a federal habeas court to develop and consider new evidence, limiting review of factual determinations under §2254(d)(2) to \"the evidence presented in the State court proceeding,\" and review of legal claims under §2254(d)(1) \"to the record that was before the state court.\" Cullen v. Pinholster, 563 U. S. 170, 181. A federal court may admit new evidence only in two limited situations: Either the claim must rely on a \"new\" and \"previously unavailable\" \"rule of constitutional law\" made retroactively applicable by this Court, or it must rely on \"a factual predicate that could not have been previously discovered through the exercise of due diligence.\" §2254(e)(2)(A). But before a federal court may decide whether to grant an evidentiary hearing or \"otherwise consider new evidence\" under §2254(e)(2), it must first determine that such evidence could be legally considered in the prisoner’s case. Shinn v. Martinez Ramirez, 596 U. S. ___, ___. That is because a federal court \"may never needlessly prolong a habeas case, particularly given the essential need to promote the finality of state convictions.\" Id., at ___ (internal quotation marks omitted). Twyford’s transportation request was granted under the All Writs Act. This Court has held that the All Writs Act cannot be used to circumvent statutory requirements or otherwise binding procedural rules. See Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U. S. 34, 43. In federal habeas proceedings, AEDPA provides the governing rules. And this Court’s precedents explain that a district court must consider AEDPA’s requirements before facilitating the development of new evidence. By the same token, if an order issued under the All Writs Act enables a prisoner to fish for unusable evidence, such a writ would not be \"necessary or appropriate in aid of\" the federal court’s jurisdiction, as all orders issued under the Act must be. §1651(a). \"[G]uided by the general principles underlying [this Court’s] habeas corpus jurisprudence,\" Calderon v. Thompson, 523 U. S. 538, 554, a writ that enables a prisoner to gather evidence that would not be admissible would \"needlessly prolong\" resolution of the federal habeas case, Shinn, 596 U. S., at ___, and frustrate the \"State’s interest[ ] in finality,\" Calderon, 523 U. S., at 556. A federal court order requiring a State to transport a prisoner to a public setting not only delays resolution of his habeas case, but may also present serious risks to public safety. Commanding a State to take such risks so that a prisoner can search for unusable evidence would not be a \"necessary or appropriate\" means of aiding a federal court’s limited habeas review. Pp. 4–9. (b) The District Court and Court of Appeals in this case concluded that directing the State to transport Twyford to a medical facility would aid the adjudication of his habeas petition, but they never determined how this could aid his cause. For the reasons discussed, that was error. Applying the proper standard here is straightforward. Twyford never explained how the results of the neurological testing could be admissible in his habeas proceedings, and it is hard to see how they could be, since the District Court’s AEDPA review is limited to \"the record that was before the state court,\" Pinholster, 563 U. S., at 181, and Twyford made no attempt to explain how that bar would be inapplicable in his case. Twyford suggested that the results of his brain testing could \"plausibly\" bear on the question whether to excuse procedural default, but he did not identify the particular defaulted claims nor explain how the testing would allow him to resurrect those claims. Pp. 9–11.", "opinion": "CHIEF JUSTICE ROBERTS delivered the opinion of the Court. The All Writs Act authorizes federal courts to \"issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.\" 28 U. S. C. §1651(a). In this case, the District Court ordered the State to transport a prisoner in its custody to a hospital for medical testing. The prisoner argued that the testing could reveal evidence helpful in his effort to obtain habeas corpus relief. The question is whether the District Court’s order is \"necessary or appropriate in aid of\" the federal court’s resolution of the prisoner’s habeas case. We hold that it is not, and therefore reverse. I On the evening of September 23, 1992, Raymond Twyford and his co-conspirator lured Richard Franks to a remote location, and shot and killed him. To hide their crime, the pair mutilated Franks’s body and pushed it into a pond. But a sheriff found the body a few days later, and his investigation led to Twyford. Twyford confessed, claiming that Franks had raped his girlfriend’s daughter and that he had killed Franks out of revenge. A jury convicted Twyford of aggravated murder, kidnapping, robbery, and other charges, and he was sentenced to death. The Ohio appellate courts affirmed his conviction and sentence, State v. Twyford, 94 Ohio St. 3d 340, 763 N. E. 2d 122, and this Court denied certiorari, 537 U. S. 917 (2002). Twyford then sought postconviction relief in Ohio state court. Relevant here, he claimed that his trial counsel was ineffective for failing to present evidence of a head injury Twyford sustained as a teenager during a suicide attempt. That injury, Twyford argued, left him \"unable to make rational and voluntary choices.\" State v. Twyford, 2001 WL 301411, *10 (Ohio App. 7th, Mar. 19, 2001). The Ohio trial court and Court of Appeals rejected this claim on the merits, concluding that \"a finding of ineffective assistance cannot be based upon the trial counsel’s choice of one competing psychological explanation over another.\" Id., at *13. The Court of Appeals noted that Twyford’s counsel had called a psychologist who testified in support of a completely different theory: that Twyford’s \"commission of the murder was his way of protecting the alleged rape victim from the same type of abusive behavior [he] had experienced when he was young.\" Ibid. Unlike the head injury theory, this one explained Twyford’s seemingly deliberate and rational actions: planning a fake hunting trip as a ruse to lure Franks to a remote location, dismembering his body, and disposing of it in such a way as would conceal his identity. This theory was also consistent with Twyford’s own written confession, which described his plan in detail. The Ohio Supreme Court denied review. State v. Twyford, 95 Ohio St. 3d 1436, 2002-Ohio-2084, 766 N. E. 2d 1002 (Table). In 2003, Twyford filed a petition in federal court for habeas relief, from which this case stems. Despite the passing of two decades, relatively little has happened. The State moved in 2008 to dismiss many of Twyford’s claims on the ground that he failed to raise them in state court. The District Court did not rule on that motion for nine years. Eventually, it dismissed most of Twyford’s claims as procedurally defaulted but allowed a few, including some ineffective assistance of counsel claims, to proceed. Twyford v. Bradshaw, No. 2:03–cv–906 (SD Ohio, Sept. 27, 2017). Twyford then moved for an order compelling the State \"to transport [him] to The Ohio State University Medical Center for medical testing necessary for the investigation, presentation, and development of claims.\" Motion to Transport for Medical Testing in No. 2:03–cv–906 (SD Ohio), p. 1 (Motion to Transport). Twyford explained that such testing could not be conducted at the prison, and argued that it was necessary to determine whether he suffers neurological defects due to childhood physical abuse, alcohol and drug use, and the self-inflicted gunshot wound to his head. Id., at 3. In support of his motion, he attached a letter from a neurologist stating that \"a CT/FDG-PET scan would be a useful next step to further evaluate [him] for brain injury,\" in part because previous scans revealed 20 to 30 metal fragments in his skull. App. to Pet. for Cert. 272a. Twyford argued that it was \"plausible\" that the testing was \"likely to reveal evidence in support of\" claims and that it \"could plausibly lead to the development of evidence and materials\" that could counter arguments of \"procedural default or exhaustion.\" Motion to Transport 8. He also urged the court to disregard, at least for now, the question whether the results of the brain testing would be admissible. The District Court granted Twyford’s motion and ordered the State to transport him to the Medical Center. It determined that the order was appropriate under the All Writs Act, which authorizes federal courts to \"issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.\" 28 U. S. C. §1651(a). The District Court did not address whether it would be able to consider the evidence that Twyford hoped to develop. The District Court stayed the transportation order pending appeal, and the Court of Appeals affirmed, 11 F. 4th 518 (CA6 2021). That court first concluded that transportation orders to gather evidence are \"agreeable to the usages and principles of law.\" §1651(a). It then determined that Twyford’s transportation to gather evidence was \"necessary or appropriate\" under the Act because the desired evidence \"plausibly relate[d]\" to his claims for relief. 11 F. 4th, at 526–527. Like the District Court, the Court of Appeals concluded that it was not required to \"consider the admissibility of any resulting evidence\" before ordering the State to transport Twyford to gather it. Id., at 527. Judge Batchelder dissented, contending that such an order is \"necessary or appropriate in aid of\" a court’s jurisdiction only if \"(1) the petitioner has identified specific claims for relief that the evidence being sought would support or further; and (2) the district court has determined that if that evidence is as the petitioner proposed or anticipated, then it could entitle the petitioner to habeas relief.\" Id., at 529. The majority’s approach, she argued, allowed Twyford to \"proceed in reverse order by collecting evidence before justifying it.\" Ibid. We granted certiorari. 595 U. S. ___ (2022). II The State argues that the lower courts erred for two independent reasons. First, the State contends that the All Writs Act does not authorize the issuance of transportation orders for medical testing at all. Second, the State argues that the transportation order was not \"necessary or appropriate in aid of\" the District Court’s jurisdiction because Twyford failed to show that the evidence he hoped to find would be useful to his habeas case. We agree with the State’s second argument and thus need not address the first. A federal court’s power to grant habeas relief is restricted under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which provides that the writ may issue \"only on the ground that [the prisoner] is in custody in violation of the Constitution or laws or treaties of the United States.\" 28 U. S. C. §2254(a). To understand the propriety of the transportation order the District Court entered while adjudicating Twyford’s habeas corpus action, it is necessary to review the limits AEDPA imposes on federal courts. Congress enacted AEDPA \"to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases,\" Woodford v. Garceau, 538 U. S. 202, 206 (2003), and to advance \"the principles of comity, finality, and federalism,\" Williams v. Taylor, 529 U. S. 420, 436 (2000) (Michael Williams). It furthered those goals \"in large measure [by] revising the standards used for evaluating the merits of a habeas application.\" Garceau, 538 U. S., at 206. Pertinent here, §2254(d) provides that if a claim was adjudicated on the merits in state court, a federal court cannot grant relief unless the state court (1) contradicted or unreasonably applied this Court’s precedents, or (2) handed down a decision \"based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.\" The question under AEDPA is thus not whether a federal court believes the state court’s determination was incorrect, but whether that determination was unreasonable—\"a substantially higher threshold\" for a prisoner to meet. Schriro v. Landrigan, 550 U. S. 465, 473 (2007); see also Harrington v. Richter, 562 U. S. 86, 102– 103 (2011). AEDPA also restricts the ability of a federal habeas court to develop and consider new evidence. Review of factual determinations under §2254(d)(2) is expressly limited to \"the evidence presented in the State court proceeding.\" And in Cullen v. Pinholster, 563 U. S. 170 (2011), we explained that review of legal claims under §2254(d)(1) is also \"limited to the record that was before the state court.\" Id., at 181. This ensures that the \"state trial on the merits\" is the \"main event, so to speak, rather than a tryout on the road for what will later be the determinative federal habeas hearing.\" Wainwright v. Sykes, 433 U. S. 72, 90 (1977) (internal quotation marks omitted). If a prisoner \"failed to develop the factual basis of a claim in State court proceedings,\" a federal court may admit new evidence, but only in two quite limited situations. §2254(e)(2). Either the claim must rely on a \"new\" and \"previously unavailable\" \"rule of constitutional law\" made retroactively applicable by this Court, or it must rely on \"a factual predicate that could not have been previously discovered through the exercise of due diligence.\" §2254(e)(2)(A). And even if a prisoner can satisfy one of those two exceptions, he must also show that the desired evidence would demonstrate, \"by clear and convincing evidence,\" that \"no reasonable factfinder\" would have convicted him of the charged crime. §2254(e)(2)(B). Thus, although state prisoners may occasionally submit new evidence in federal court, \"AEDPA’s statutory scheme is designed to strongly discourage them from doing so.\" Pinholster, 563 U. S., at 186; see also Michael Williams, 529 U. S., at 437 (\"Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.\"). We have explained that a federal court, in deciding whether to grant an evidentiary hearing or \"otherwise consider new evidence\" under §2254(e)(2), must first take into account these restrictions. Shinn v. Martinez Ramirez, 596 U. S. ___, ___ (2022) (slip op., at 21); see also Schriro, 550 U. S., at 474. The reasons for this are familiar. A federal court \"may never needlessly prolong a habeas case, particularly given the essential need to promote the finality of state convictions,\" so a court must, before facilitating the development of new evidence, determine that it could be legally considered in the prisoner’s case. Shinn, 596 U. S., at ___ (slip op., at 21) (internal quotation marks and citation omitted); see also Bracy v. Gramley, 520 U. S. 899, 904 (1997) (\"A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.\"). If §2254(e)(2) applies and the prisoner cannot satisfy its \"stringent requirements,\" Michael Williams, 529 U. S., at 433, holding an evidentiary hearing or otherwise expanding the state-court record would \"prolong federal habeas proceedings with no purpose,\" Shinn, 596 U. S., at ___ (slip op., at 21) (internal quotation marks omitted). And that would in turn disturb the \"State’s significant interest in repose for concluded litigation.\" Harrington, 562 U. S., at 103. A court therefore must, consistent with AEDPA, determine at the outset whether the new evidence sought could be lawfully considered. This is true even when the All Writs Act is the asserted vehicle for gathering new evidence. We have made clear that a petitioner cannot use that Act to circumvent statutory requirements or otherwise binding procedural rules. See Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U. S. 34, 43 (1985) (\"Although [the Act] empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.\"); Syngenta Crop Protection, Inc. v. Henson, 537 U. S. 28, 32–33 (2002) (same). AEDPA provides the governing rules for federal habeas proceedings, and our precedents explain that a district court must consider that statute’s requirements before facilitating the development of new evidence. See Schriro, 550 U. S., at 474; see also Shinn, 596 U. S., at ___ (slip op., at 21). By the same token, a writ seeking new evidence would not be \"necessary or appropriate in aid of\" a federal habeas court’s jurisdiction, as all orders issued under the All Writs Act must be, if it enables a prisoner to fish for unusable evidence, in the hope that it might undermine his conviction in some way. In every habeas case, \"the court must be guided by the general principles underlying our habeas corpus jurisprudence.\" Calderon v. Thompson, 523 U. S. 538, 554 (1998). A writ that enables a prisoner to gather evidence that would not be admissible would \"needlessly prolong\" resolution of the federal habeas case, Shinn, 596 U. S., at ___ (slip op., at 21), and frustrate the \"State’s interest[] in finality,\" Calderon, 523 U. S., at 556. Cf. Harris v. Nelson, 394 U. S. 286, 300 (1969) (recognizing, before AEDPA, that a writ is \"necessary or appropriate in aid of\" a federal habeas court’s jurisdiction if \"specific allegations\" show that the petitioner may, \"if the facts are fully developed,\" be able to demonstrate that he is \"entitled to relief\"). A federal court order requiring a State to transport a prisoner to a public setting—here, a medical center for testing—not only delays resolution of his habeas case, but may also present serious risks to public safety. See Brief for State of Utah et al. as Amici Curiae 7–18 (describing the dangers inherent in prisoner transport); cf. Price v. Johnston, 334 U. S. 266, 285 (1948) (a court should not require that a prisoner be transported if doing so would cause \"undue inconvenience or danger\").2 Commanding a State to take these risks so that a prisoner can search for unusable evidence would not be a \"necessary or appropriate\" means of aiding a federal court’s limited habeas review. B The District Court entered an order directing the State to transport Twyford to a medical facility, concluding that doing so would aid its adjudication of his habeas petition. But the court never determined how, in light of the limitations on its review described above, newly developed evidence could aid Twyford’s cause. See Twyford v. Warden, 2020 WL 1308318, *4 (SD Ohio, Mar. 19, 2020) (\"the Court does not find itself in a position at this stage of proceedings to make a determination as to whether or to what extent it would be precluded by Cullen v. Pinholster from considering any new evidence\"). Nor did the Sixth Circuit. See 11 F. 4th, at 527 (\"At this stage, on review of Twyford’s interlocutory appeal seeking a transport order, we need not consider the admissibility of any resulting evidence.\"). For the reasons just discussed, that was error. Reviewing Twyford’s request for transportation under the proper standard is straightforward, because his motion sheds no light on how he might persuade a court to consider the results of his testing, given the limitations AEDPA imposes on presenting new evidence. He argued that it is \"plausible that the testing to be administered is likely to reveal evidence in support of\" his claims of ineffective assistance of counsel and expert witness, lack of competency to stand trial, and the involuntariness of his confession. Motion to Transport 8. Whether or not that is true, Twyford never explained how the results of the neurological testing could be admissible in his habeas proceeding, and it is hard to see how they could be. The Ohio courts already adjudicated and rejected most of these claims on the merits, and the District Court’s AEDPA review will therefore be limited to \"the record that was before the state court.\" Pinholster, 563 U. S., at 181. As for the claims that the state courts did not consider, Twyford never argued that he could clear the bar in §2254(e)(2) for expanding the state court record, or that the bar was somehow inapplicable. Twyford asserted in passing that the desired evidence could \"plausibly\" bear on the question whether to excuse procedural default. Motion to Transport 8. By way of background, a federal court may not review a claim a habeas petitioner failed to adequately present to state courts, unless he shows \"cause to excuse his failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation.\" Davila v. Davis, 582 U. S. ___, ___ (2017) (slip op., at 5) (internal quotation marks omitted). Twyford suggested that the results of his brain testing could help make that showing. But he did not identify the particular defaulted claims he hopes to resurrect, nor did he explain how the testing would matter to his ability to do so. And in any event, this Court has already held that, if §2254(e)(2) applies and the prisoner cannot meet the statute’s standards for admitting new merits evidence, it serves no purpose to develop such evidence just to assess cause and prejudice. See Shinn, 596 U. S., at ___ (slip op., at 20) (\"when a federal habeas court . . . admits or reviews new evidence for any purpose, it may not consider that evidence on the merits of a negligent prisoner’s defaulted claim unless the exceptions in §2254(e)(2) are satisfied\"). The District Court thus erred in ordering Twyford’s transfer to gather evidence he had never demonstrated would be admissible. A transportation order that allows a prisoner to search for new evidence is not \"necessary or appropriate in aid of\" a federal court’s adjudication of a habeas corpus action, 28 U. S. C. §1651(a), when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief. Because the District Court entered such an order despite Twyford’s failure to make the required showing, the judgment of the Court of Appeals affirming that order is reversed and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "20-493", "syllabus": "This case represents the latest conflict between Texas gaming officials and the Ysleta del Sur Pueblo Indian Tribe. In 1968, Congress recognized the Ysleta del Sur Pueblo as an Indian tribe and assigned its trust responsibilities for the Tribe to Texas. 82 Stat. 93. In 1983, Texas renounced its trust responsibilities as inconsistent with the State’s Constitution. The State also expressed opposition to any new federal trust legislation that did not permit the State to apply its own gaming laws on tribal lands. Congress restored the Tribe’s federal trust status in 1987 when it adopted the Ysleta del Sur and Alabama and Coushatta Indian Tribes of Texas Restoration Act. 101 Stat. 666. The Restoration Act also \"prohibited\" as a matter of federal law \"[a]ll gaming activities which are prohibited by the laws of the State of Texas.\" Id., at 668. Shortly thereafter, Congress adopted its own comprehensive Indian gaming legislation: the Indian Gaming Regulatory Act (IGRA). IGRA established rules for separate classes of games. As relevant here, IGRA permitted Tribes to offer so-called class II games—like bingo—in States that \"permi[t] such gaming for any purpose by any person, organization or entity.\" 25 U. S. C. §2710(b)(1)(A). IGRA allowed Tribes to offer class III games—like blackjack and baccarat—but only pursuant to negotiated tribal/state compacts. §2703(8). Pursuant to IGRA, the Tribe sought to negotiate a compact with Texas to offer class III games. Texas refused, arguing that the Restoration Act displaced IGRA and required the Tribe to follow all of the State’s gaming laws on tribal lands. In subsequent federal litigation, the District Court held that Texas violated IGRA by failing to negotiate in good faith. The Fifth Circuit reversed, holding that the Restoration Act’s directions superseded IGRA’s and guaranteed that the entirety of \"Texas’ gaming laws and regulations\" would \"operate as surrogate federal law on the Tribe’s reservation.\" 36 F. 3d 1325, 1326, 1334 (Ysleta I). In 2016, the Tribe began to offer bingo, including \"electronic bingo\" machines, on the view that IGRA treats bingo as a class II game for which no state permission is required so long as the State permits the game to be played on some terms by some persons. The State then sought to shut down all of the Tribe’s bingo operations. Bound by Ysleta I, the District Court sided with Texas and enjoined the Tribe’s bingo operations, but the court stayed the injunction pending appeal. The Fifth Circuit reaffirmed Ysleta I and held that the Tribe’s bingo operations were impermissible because they did not conform to Texas’s bingo regulations. Held: The Restoration Act bans as a matter of federal law on tribal lands only those gaming activities also banned in Texas. Pp. 8–20. (a) Section 107 of the Restoration Act directly addresses gaming on the lands of the Ysleta del Sur Pueblo. It provides in subsection (a) that \"gaming activities which are prohibited by [Texas law] are hereby prohibited on the reservation and on lands of the tribe.\" Subsection (b) insists that the statute does not grant Texas \"civil or criminal regulatory jurisdiction\" with respect to matters covered by §107. The State reads the Act as effectively subjecting the Tribe to the entire body of Texas gaming laws and regulations. The Tribe, however, understands the Act to bar it from offering only those gaming activities the State fully prohibits, and that if Texas merely regulates bingo, the Tribe may also offer that game subject only to federal-law, not statelaw, limitations. The language of §107—particularly its dichotomy between prohibition and regulation—presents Texas with a problem. Texas concedes that its laws do not \"forbid,\" \"prevent,\" \"effectively stop,\" or \"make impossible\" bingo operations in the State. Webster’s Third International Dictionary 1813 (defining \"prohibit\"). Instead, the State admits that it allows the game \"according to rule[s]\" that \"fix the time,\" place, and manner in which it may be conducted. Id., at 1913 (defining \"regulate\"). From this alone, Texas’s bingo laws appear to fall on the regulatory rather than prohibitory side of the line. In response, Texas describes its laws as \"prohibiting\" bingo unless the State’s regulations are followed and insists that it is merely seeking to do what subsection (a) allows. Texas’s understanding of the word \"prohibit\" would risk turning the Restoration Act’s terms into an indeterminate mess. In Texas’s view, laws regulating gaming activities become laws prohibiting gaming activities—an interpretation that violates the rule against \"ascribing to one word a meaning so broad\" that it assumes the same meaning as another statutory term. Gustafson v. Alloyd Co., 513 U. S. 561, 575. Indeterminacy aside, the State’s interpretation would leave subsection (b)—denying the State regulatory jurisdiction—with no work to perform. As a result, Texas’s interpretation also defies another canon of statutory construction—the rule that courts must normally seek to construe Congress’s work \"so that effect is given to all provisions.\" Corley v. United States, 556 U. S. 303, 314 (internal quotation marks omitted). Seeking to give subsection (b) real work to perform, Texas submits that the provision serves to deny its state courts and gaming commission \"jurisdiction\" to punish violations of subsection (a) by sending such disputes to federal court instead. But that interpretation only serves to render subsection (c), which grants federal courts \"exclusive\" jurisdiction over subsection (a) violations, a nullity. A full look at the statute’s structure suggests a set of simple and coherent commands; Texas’s competing interpretation renders individual statutory terms duplicative and leaves whole provisions without work to perform. Pp. 8–12. (b) Important contextual clues resolve any remaining questions. Congress passed the Restoration Act six months after this Court handed down its decision in California v. Cabazon Band of Mission Indians, 480 U. S. 202. There, the Court interpreted Public Law 280— a statute Congress had adopted in 1953 to allow a handful of States to enforce some of their criminal laws on certain tribal lands—to mean that only \"prohibitory\" state gaming laws could be applied on the Indian lands in question, not state \"regulatory\" gaming laws. The Cabazon Court held that California’s bingo laws—materially identical to Texas’s laws here—fell on the regulatory side of the ledger. This Court generally assumes that, when Congress enacts statutes, it is aware of this Court’s relevant precedents. Ryan v. Valencia Gonzales, 568 U. S. 57, 66. At the time Congress adopted the Restoration Act, Cabazon was not only a relevant precedent; it was the precedent. In Cabazon’s immediate aftermath, Congress also adopted other laws governing tribal gaming that appeared to reference and employ in different ways Cabazon’s distinction between prohibition and regulation. See, e.g., Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987, §9, 101 Stat. 709–710. None of this is to say that the Tribe may offer gaming on whatever terms it wishes. The Restoration Act provides that a gaming activity prohibited by Texas law is also prohibited on tribal land as a matter of federal law. Other gaming activities are subject to tribal regulation and must conform to the terms and conditions set forth in federal law, including IGRA to the extent applicable. Pp. 12–15. (c) The State’s remaining arguments are unavailing. Pp. 15–19. (1) Texas asks the Court to focus on subsection (a) of the Restoration Act, which ends with the statement that \"[t]he provisions of this subsection are enacted in accordance with the tribe’s request in Tribal Resolution No. T. C.–02–86.\" 101 Stat. 668–669. In that referenced resolution, the Tribe announced its opposition to Texas’s legislative efforts to have its gaming laws apply on tribal lands. At the same time, the Tribe also announced its own intention to prohibit gaming on its reservation and authorized the acceptance of federal legislation prohibiting gaming on tribal lands. Texas claims that the reference to the tribal resolution suggests the Restoration Act should be read \"broadly\" to allow Texas to apply its gaming regulations on tribal lands. As an initial matter, subsection (a) does not purport to incorporate that resolution into federal law—something Congress knows how to do when it wishes, see e.g., 25 U. S. C. §5396(b). In addition, Texas’s \"broad\" reading suffers from the same interpretative challenges already mentioned and defies Congress’s apparent adoption of Cabazon’s prohibitory/regulatory distinction. Finally, on this Court’s interpretation of the Restoration Act, Congress did legislate \"in accordance with\" the Tribe’s resolution by expressly granting the Tribe federal recognition and choosing not to apply Texas gaming regulations as surrogate federal law on tribal land. Pp. 15–18. (2) Texas appeals to public policy and argues that attempts to distinguish between prohibition and regulation are sure to prove \"unworkable.\" It is not, however, this Court’s place to question whether Congress adopted the wisest or most workable policy. That the Restoration Act’s prohibitory/regulatory distinction can and will generate borderline cases hardly makes it unique among federal statutes. And courts have applied the same prohibitory/regulatory framework for decades under Public Law 280. Moreover, Texas’s alternative interpretation poses its own \"workability\" challenges, as federal courts would be charged with enforcing the minutiae of state gaming regulations governing the conduct of permissible games. Pp. 18–19. 955 F. 3d 408, vacated and remanded.", "opinion": "Native American Tribes possess \"inherent sovereign authority over their members and territories.\" Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498 U. S. 505, 509 (1991). Under our Constitution, treaties, and laws, Congress too bears vital responsibilities in the field of tribal affairs. See, e.g., United States v. Lara, 541 U. S. 193, 200 (2004). From time to time, Congress has exercised its authority to allow state law to apply on tribal lands where it otherwise would not. See Santa Clara Pueblo v. Martinez, 436 U. S. 49, 60 (1978); Bryan v. Itasca County, 426 U. S. 373, 392 (1976); Rice v. Olson, 324 U. S. 786, 789 (1945). In this case, Texas contends that Congress expressly ordained that all of its gaming laws should be treated as surrogate federal law enforceable on the Ysleta del Sur Pueblo Reservation. In the end, however, we find no evidence Congress endowed state law with anything like the power Texas claims. I A The Ysleta del Sur Pueblo is one of three federally recognized Indian Tribes in Texas. Its reservation lies near El Paso, and the Tribe today includes over 4,000 enrolled members. See About Us, Ysleta del Sur Pueblo (June 2022), https://www.ysletadelsurpueblo.org/about-us. The Tribe traces its roots back to the 1680 Pueblo Revolt against the Spanish in New Mexico. In the revolt’s aftermath, the Spanish retreated from Santa Fe to El Paso, and a large number of Ysleta Pueblo Indians accompanied them. S. Rep. No. 100–90, p. 6 (1987) (Senate Report); W. Timmons, El Paso 18 (1990) (Timmons). Soon, tribal members built the Ysleta Mission, the oldest church in Texas, and in 1751 Spain granted 23,000 acres to the Tribe for its homeland. See Senate Report 6–7; Timmons 36. Things changed for the Tribe after Texas gained statehood in 1845. The State disregarded Spain’s land grant and began incorporating a town on tribal lands and issuing land patents to non-Indians. Senate Report 6–7. Over the years that followed, the Tribe repeatedly lost lands \"without recompense.\" Timmons 181. Yet some tribal members remained on parts of their homeland, \"determin[ed] to preserve [their] language, customs, and traditions.\" Ibid. In the late 1890s, the Tribe adopted a constitution to ensure \"the survival of [its] ancient tribal organization.\" Ibid. After years of struggle, the Tribe also won formal recognition from Texas in 1967 and Congress the following year. Id., at 260–261. In its 1968 legislation, Congress assigned its trust responsibilities for the Tribe to Texas. 82 Stat. 93. That trust relationship was important, as it ensured the Tribe would retain the remaining 100 acres of land it possessed and gain access to certain tribal funding programs. See Timmons 261; see also R. Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan. L. Rev. 1213, 1233–1234 (1975) (discussing trust obligations). This arrangement persisted until 1983. That year, Texas renounced its trust responsibilities, asserting that they were inconsistent with the State’s Constitution. See 2019 WL 639971, *1 (WD Tex., Feb. 14, 2019). The Tribe responded to this development by seeking new congressional legislation to reestablish its trust relationship with the federal government. But that effort quickly became bogged down in a dispute. Of all things, it concerned bingo. Texas, it seems, worried that allowing tribal gaming would have a detrimental effect on \"existing charitable bingo operations in the State of Texas.\" App. to Pet. for Cert. 121. And because Texas judged that its laws would be inapplicable on tribal lands without federal approval, the State opposed any new federal trust legislation unless it included a special provision permitting it to apply its own gaming laws on the Tribe’s lands. See ibid. B Years of negotiations ensued. But one development during this period turned out to have particular salience even though it did not immediately concern either the Tribe or Texas. In February 1987, this Court issued California v. Cabazon Band of Mission Indians, 480 U. S. 202. In it, the Court addressed Public Law 280, a statute Congress had adopted in 1953 to allow a handful of States to enforce some of their criminal—but not certain of their civil—laws on particular tribal lands. See Bryan, 426 U. S., at 383–385. Seeking to apply that statutory direction in the context of Indian gaming, the Court held that, if a state law prohibits a particular game, it falls within Public Law 280’s grant of criminal jurisdiction and a State may enforce its ban on tribal lands. Cabazon, 480 U. S., at 209–210. But if state laws merely regulate a game’s availability, the Court ruled, Public Law 280 does not permit a State to enforce its rules on tribal lands. See id., at 210–211. The Court then turned to apply this prohibitory/regulatory distinction to California’s bingo laws. Much like Texas today, California in 1987 permitted bingo in various circumstances (including for charitable purposes), but treated deviations from its rules as criminal violations. See id., at 205, 208–209. Because California allowed some bingo to be played, the Court reasoned, the State \"regulate[d] rather than prohibit[ed]\" the game. Id., at 211. From this, it followed that Public Law 280 did not authorize the State to apply its own bingo laws on tribal lands. Id., at 210–211. In reaching this conclusion, the Court rejected California’s suggestion that its laws were prohibitory rather than regulatory because they were enforceable by criminal sanctions, explaining that \"an otherwise regulatory law\" is not enforceable under Public Law 280 merely because a State labels it \"criminal.\" Id., at 211. \"Otherwise,\" the Court explained, Public Law 280’s \"distinction\" between criminal and civil laws \"could easily be avoided.\" Ibid. It appears the Court’s decision helped catalyze new legislation. After Cabazon, \"congressional efforts to pass [Indian gaming] legislation . . . that had been ongoing since 1983 gained momentum, with Indian tribes’ position strengthened.\" W. Wood, The (Potential) Legal History of Indian Gaming, 63 Ariz. L. Rev. 969, 1027, and n. 353 (2021) (Wood). In fact, just six months after the decision, in August 1987, Congress finally adopted the Ysleta del Sur and Alabama and Coushatta Indian Tribes of Texas Restoration Act, 101 Stat. 666 (Restoration Act). In that law, Congress restored the Tribe’s federal trust status. And to resolve Texas’s gaming objections, Congress seemingly drew straight from Cabazon, employing its distinction between prohibited and regulated gaming activity. The Restoration Act \"prohibited\" as a matter of federal law \"[a]ll gaming activities which are prohibited by the laws of the State of Texas.\" 101 Stat. 668. But the Act also provided that it should not be \"construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas.\" Id., at 669. That was not all Congress did. Because Cabazon left certain States unable to apply their gaming regulations on Indian reservations, some feared the Court’s decision opened the door to a significant amount of new and unregulated gaming on tribal lands. See R. Anderson, S. Krakoff, & B. Berger, American Indian Law: Cases and Commentary 479–480 (4th ed. 2020) (Anderson). In 1988, Congress sought to fill that perceived void by adopting its own comprehensive national legislation: the Indian Gaming Regulatory Act (IGRA), 102 Stat. 2467, 25 U. S. C. § 2701 et seq.; Anderson 479–482. IGRA established rules for three separate classes of games. Relevant here, the law permitted Tribes to offer so-called class II games—like bingo—in States that \"permi[t] such gaming for any purpose by any person, organization or entity.\" § 2710(b)(1)(A). Meanwhile, the statute allowed Tribes to offer class III games— like blackjack and baccarat—but only pursuant to tribal/state compacts. § 2703(8); Anderson 480. To ensure compliance with the statute’s terms, IGRA created the National Indian Gaming Commission. § 2704(a). C In the 1990s, the Tribe sought to negotiate a compact with Texas to offer class III games pursuant to IGRA. But Texas refused to come to the table. It argued that the Restoration Act displaced IGRA and required the Tribe to follow all of the State’s gaming laws on tribal lands. That dispute quickly found its way to court. Initially, a federal district court granted summary judgment for the Tribe, holding that Texas violated IGRA by failing to negotiate in good faith. On appeal, however, the Fifth Circuit reversed. That court held that the Restoration Act’s directions superseded IGRA’s and guaranteed that all of \"Texas’ gaming laws and regulations\" would \"operate as surrogate federal law on the Tribe’s reservation.\" Ysleta del Sur Pueblo v. Texas, 36 F. 3d 1325, 1326, 1334 (1994) (Ysleta I). A quarter century of confusion and litigation followed. Repeatedly, the Tribe sought to conduct gaming operations within the confines of Ysleta I at its Speaking Rock Entertainment Center, which houses restaurants, bars, and concert venues. Repeatedly, Texas argued that the Tribe’s activities exceeded the Fifth Circuit’s mandate. Faced with these disputes, lower courts experimented with a variety of approaches: enjoining all on-reservation gaming, instructing the Tribe to seek licenses from Texas regulators, and even requiring the Tribe to obtain preapproval from a federal court before offering any new gaming operations. One court described this process as having \"transformed [it] into a quasi-regulatory body overseeing and monitoring the minutiae of the [Tribe’s] gaming-related conduct.\" Texas v. Ysleta del Sur Pueblo, 2016 WL 3039991, *19 (WD Tex., May 27, 2016). D The current case represents just the latest in this long line. In 2016, the Tribe began offering bingo. On its view, it was free to offer at least this game because IGRA treats bingo as a class II game for which no state permission is required so long as the State permits the game to be played on some terms by some persons. See 25 U. S. C. § 2710(b)(1)(A). Citing IGRA, the Tribe did not just offer the sort of bingo played in church halls across the country. It also offered \"electronic bingo,\" a game in which patrons sit at \"machines [that] look similar to a traditional slot machine.\" 2019 WL 639971, *5 (internal quotation marks omitted). Unlike typical slot machines, however, \"the underlying game is run using historical bingo draws.\" Ibid. The State responded by seeking to shut down all of the Tribe’s bingo operations. Whatever IGRA may allow, Texas argued, the Fifth Circuit was clear in Ysleta I that the Restoration Act forbids the Tribe from defying any of the State’s gaming regulations. And, Texas stressed, under its laws bingo remains permissible today only for charitable purposes and only subject to a broad array of regulations. Finding itself bound by Ysleta I, the District Court sided with Texas and enjoined the Tribe’s bingo operations. But the court also chose to stay its injunction pending appeal. The court did so because it thought that either the Fifth Circuit or this Court might wish to reconsider Ysleta I. See 2019 WL 5589051, *1 (WD Tex., Mar. 28, 2019). After all, the Restoration Act effectively federalizes only those state laws that prohibit gaming activities. The statute expressly states that nothing in it may be read as authorizing Texas to enforce criminal or civil regulations on tribal lands. And when it comes to bingo, the State permits at least some forms of the game subject to regulation. In the District Court’s judgment, \"the Tribe [had] a sufficient likelihood of success on the merits\" under the terms of the Restoration Act \"to support a stay.\" Ibid. The District Court further found that, without a stay, the injury to the Tribe would be \"truly irreparable.\" Id., at *2. Speaking Rock’s revenues account for 60 percent of the Tribe’s operating budget, which supports \"significant educational, governmental, and charitable initiatives.\" Ibid; Brief for Petitioners 17. And when Speaking Rock closed due to one of the many previous disputes, tribal unemployment rose from 3 to 28 percent. See id., at 18. On appeal, the Fifth Circuit \"re-reaffirm[ed]\" Ysleta I and held that the decision \"resolve[d] this dispute.\" 955 F. 3d 408, 414, 417 (2020). Ysleta I expressly held that all of \"Texas’ gaming laws and regulations . . . operate as surrogate federal law on the Tribe’s reservation.\" 955 F. 3d, at 414 (emphasis deleted). And because the Tribe’s bingo operations did not conform to the State’s bingo regulations, the court held, they were impermissible. Ibid. After the Tribe filed a petition for certiorari, this Court called for the views of the Solicitor General. The United States argued that the Fifth Circuit’s understanding of the Restoration Act took a wrong turn in Ysleta I and urged us to correct the error. See Brief for United States as Amicus Curiae on Pet. for Cert. 1. Ultimately, we agreed to take up this case to consider that question. 595 U. S. ___ (2021). II A Before us, the parties offer two very different accounts of the Restoration Act. The State, in its only argument in support of regulatory jurisdiction over the Tribe’s gaming activities, reads the Act as effectively subjecting the Tribe to the entire body of Texas gaming laws and regulations, just as the Fifth Circuit held in Ysleta I. The Tribe understands the Act to bar it from offering only those gaming activities the State fully prohibits. Consistent with Cabazon, the Tribe submits, if Texas merely regulates a game like bingo, it may offer that game—and it may do so subject only to the limits found in federal law and its own law, not state law. To resolve the parties’ disagreement, we turn to § 107 of the Restoration Act, where Congress directly addressed gaming on the Tribe’s lands and said this: \"SEC. 107. GAMING ACTIVITIES. (a) IN GENERAL.—All gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation and on lands of the tribe. Any violation of the prohibition provided in this subsection shall be subject to the same civil and criminal penalties that are provided by the laws of the State of Texas. The provisions of this subsection are enacted in accordance with the tribe’s request in Tribal Resolution No. T.C.–02–86 which was approved and certified on March 12, 1986. (b) NO STATE REGULATORY JURISDICTION.—Nothing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas. (c) JURISDICTION OVER ENFORCEMENT AGAINST MEMBERS.— [T]he courts of the United States shall have exclusive jurisdiction over any offense in violation of subsection (a) that is committed by the tribe . . . .\" 101 Stat. 668–669. Perhaps the most striking feature about this language is its dichotomy between prohibition and regulation. On the one hand, subsection (a) says that gaming activities prohibited by state law are also prohibited as a matter of federal law (using some variation of the word \"prohibited\" no fewer than three times). On the other hand, subsection (b) insists that the statute does not grant Texas civil or criminal regulatory jurisdiction with respect to matters covered by this \"section,\" a section concerned exclusively with gaming. The implication that Congress drew from Cabazon and meant for us to apply its same prohibitory/regulatory framework here seems almost impossible to ignore. See Part II–B, infra. But before getting to that, we start with a careful look at the statute’s terms standing on their own. Often enough in ordinary speech, to prohibit something means to \"forbid,\" \"prevent,\" or \"effectively stop\" it, or \"make [it] impossible.\" Webster’s Third International Dictionary 1813 (1986) (Webster’s Third); see 7 Oxford English Dictionary 596 (2d ed. 1989) (OED); Black’s Law Dictionary 1212 (6th ed. 1990) (Black’s). Meanwhile, to regulate something is usually understood to mean to \"fix the time, amount, degree, or rate\" of an activity \"according to rule[s].\" Webster’s Third 1913; see 8 OED 524; Black’s 1286. Frequently, then, the two words are \"not synonymous.\" Id., at 1212. That fact presents Texas with a problem. The State concedes that its laws do not forbid, prevent, effectively stop, or make bingo impossible. Instead, the State admits that it allows the game subject to fixed rules about the time, place, and manner in which it may be conducted. See Brief for Respondent 5. From this alone, it would seem to follow that Texas’s laws fall on the regulatory rather than prohibitory side of the line—and thus may not be applied on tribal lands under the terms of subsection (b). To be sure, Texas is not without a reply. It observes that in everyday speech someone could describe its laws as \"prohibiting\" bingo unless the State’s time, place, and manner regulations are followed. After all, conducting bingo or any other game in defiance of state regulations can lead not just to a civil citation, but to a criminal prosecution too. See Tex. Occ. Code Ann. § 2001.551(c) (West 2019). In this sense, the State submits, it seeks to do exactly what subsection (a) allows—\"prohibit\" bingo that is not conducted for charitable purposes and compliant with all its state gaming regulations. That much we find hard to see. Maybe in isolation or in another context, Texas’s understanding of the word \"prohibit\" would make sense. But here it risks rendering the Restoration Act a jumble. No one questions that Texas \"regulates\" bingo by fixing the time, place, and manner in which the game may be conducted. The State submits only that, in some sense, its laws also \"prohibit\" bingo—when the game fails to comply with the State’s time, place, and manner regulations. But on that reading, the law’s dichotomy between prohibition and regulation collapses. Laws regulating gaming activities become laws prohibiting gaming activities. It’s an interpretation that violates our usual rule against \"ascribing to one word a meaning so broad\" that it assumes the same meaning as another statutory term. Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995). It’s a view that defies our usual presumption that \"differences in language like this convey differences in meaning.\" Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 6). And perhaps most tellingly, it is construction that renders state gaming regulations simultaneously both (permissible) prohibitions and (impermissible) regulations. Rather than supply coherent guidance, Texas’s reading of the law renders it an indeterminate mess. The State’s interpretation of subsection (a) presents another related problem. Suppose we could somehow overlook the indeterminacy its interpretation yields and adopt the State’s view that it may \"prohibit\" bingo under subsection (a) not merely by outlawing bingo altogether but also by dictating the time, place, and manner in which it is played. On that account, subsection (b) would be left with no work to perform, its terms dead letters all. Yes, subsection (b) says that it does not federalize Texas’s civil and criminal gaming regulations on tribal land. But, the State effectively suggests, we should turn a blind eye to all that. It’s a result that defies yet another of our longstanding canons of statutory construction—this one, the rule that we must normally seek to construe Congress’s work \"so that effect is given to all provisions, so that no part will be inoperative or superfluous, void or insignificant.\" Corley v. United States, 556 U. S. 303, 314 (2009) (internal quotation marks omitted). Seeking a way around these problems, Texas only stumbles on another. The State submits that subsection (b) performs real work even on its reading by denying its courts and gaming commission \"jurisdiction\" to punish violations of subsection (a) and sending disputes over \"regulatory\" violations to federal court instead. The dissent also embraces this approach. See post, at 14–15. But this understanding of subsection (b) only serves to render still another portion of the statute—subsection (c)—a nullity. Titled \"Jurisdiction Over Enforcement Against Members,\" subsection (c) grants the federal courts \"exclusive\" jurisdiction over violations of subsection (a), and it also permits Texas to \"brin[g] an action in [federal court] to enjoin violations of [subsection (a)].\" 101 Stat. 669. Put differently, subsection (c) already precludes state courts and state agencies from exercising jurisdiction over violations of subsection (a). To make any sense of the statute, subsection (b) must do something besides repeat that work. Stepping back, a full look at the statute’s structure suggests a set of simple and coherent commands. In subsection (a), Congress effectively federalized and applied to tribal lands those state laws that prohibit or absolutely ban a particular gaming activity. In subsection (b), Congress explained that it was not authorizing the application of Texas’s gaming regulations on tribal lands. In subsection (c), Congress granted federal courts jurisdiction to entertain claims by Texas that the Tribe has violated subsection (a). Texas’s competing interpretation of the law renders individual statutory terms duplicative and whole provisions without work to perform.1 B Even if fair questions remain after a look at the ordinary meaning of the statutory terms before us, important contextual clues resolve them. Recall that Congress passed the Act just six months after this Court handed down Cabazon. See Part I–B, supra. In that decision, the Court interpreted Public Law 280 to mean that only \"prohibitory\" state gaming laws could be applied on the Indian lands in question, not state \"regulatory\" gaming laws. The Court then proceeded to hold that California bingo laws—laws materially identical to the Texas bingo laws before us today—fell on the regulatory side of the ledger. Just like Texas today, California heavily regulated bingo, allowing it only in certain circumstances (usually for charity). Just like Texas, California criminalized violations of its rules. Compare Cabazon, 480 U. S., at 205, with Tex. Occ. Code Ann. § 2001.551. Still, because California permitted some forms of bingo, the Court concluded that meant California did not prohibit, but only regulated, the game. Cabazon, 480 U. S., at 211. For us, that clinches the case. This Court generally assumes that, when Congress enacts statutes, it is aware of this Court’s relevant precedents. See Ryan v. Valencia Gonzales, 568 U. S. 57, 66 (2013). And at the time Congress adopted the Restoration Act, Cabazon was not only a relevant precedent concerning Indian gaming; it was the precedent. See Part I–B, supra. In Cabazon, the Court drew a sharp line between the terms prohibitory and regulatory and held that state bingo laws very much like the ones now before us qualified as regulatory rather than prohibitory in nature. We do not see how we might fairly read the terms of the Restoration Act except in the same light. After all, \"[w]hen the words of the Court are used in a later statute governing the same subject matter, it is respectful of Congress and of the Court’s own processes to give the words the same meaning in the absence of specific direction to the contrary.\" Williams v. Taylor, 529 U. S. 420, 434 (2000). Even beyond that vital contextual clue lie others. In the immediate aftermath of Cabazon, Congress adopted not just the Restoration Act; it also adopted other laws governing tribal gaming activities. In these laws, Congress again appeared to reference and employ Cabazon’s distinction between prohibition and regulation—and Congress did so in ways demonstrating that it clearly understood how to grant a State regulatory jurisdiction over a Tribe’s gaming activities when it wished to do so. Cf. Lagos v. United States, 584 U. S. ___, ___–___ (2018) (slip op., at 6–7). Consider two examples. On the same day it passed the Restoration Act, Congress adopted a statute involving the Wampanoag Tribe. But, contrary to its approach in the Restoration Act, Congress subjected that Tribe’s lands to \"those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance.\" Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987, § 9, 101 Stat. 709–710 (emphasis added). Shortly after the Restoration Act, Congress adopted another statute, this one governing the Catawba Tribe’s gaming activities. In it, Congress provided that \"all laws, ordinances, and regulations of the State, and its political subdivisions, shall govern the regulation of . . . gambling or wagering by the Tribe on and off the Reservation.\" Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993, § 14(b), 107 Stat. 1136 (emphasis added). That Congress chose to use the language of Cabazon in different ways in three statutes closely related in time and subject matter seems to us too much to ignore. See State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, 580 U. S. 26, 34 (2016) (explaining that when Congress \"use[s] . . . explicit language in one provision,\" that \"cautions against inferring the same limitation in another provision\" (internal quotation marks omitted)). For two Tribes, Congress did more than just prohibit on tribal lands those gaming activities prohibited by state law. It said state regulations should apply as a matter of federal law too. Yet for this Tribe Congress did something different. It did not subject the Tribe to all Texas laws that \"prohibit or regulate\" gaming. It did not subject the Tribe to all laws that \"govern the regulation of gambling.\" Instead, Congress banned on tribal lands only those gaming activities \"prohibited\" by Texas, and it did not provide for state \"regulatory jurisdiction\" over tribal gaming.2 None of this is to say that the Tribe may offer any gaming activity on whatever terms it wishes. It is only to say that the Fifth Circuit and Texas have erred in their understanding of the Restoration Act. Under that law’s terms, if a gaming activity is prohibited by Texas law it is also prohibited on tribal land as a matter of federal law. Other gaming activities are subject to tribal regulation and must conform with the terms and conditions set forth in federal law, including IGRA to the extent it is applicable. See Brief for United States as Amicus Curiae 31–33.3 III A By this point, only two arguments remain for us to consider. In the first, Texas and the dissent focus heavily on the final sentence in subsection (a). See post, at 9–10, 13. That sentence states that \"[t]he provisions of this subsection are enacted in accordance with the tribe’s request in Tribal Resolution No. T.C.–02–86.\" 101 Stat. 668–669. In the referenced 1986 resolution, the Tribe announced its opposition to Texas’s legislative efforts to have all its gaming laws apply on tribal lands. Such a result, the resolution said, would represent \"a substantial infringement upon the Tribe[’s] power of self-government . . . [i]nconsistent with the central purposes of restoration of the federal trust relationship.\" App. to Pet. for Cert. 122. At the same time, to prevent extension of Texas law to its reservation and to avoid \"jeopardiz[ing]\" its request for renewed federal trust status, the Tribe (1) announced its own intention to prohibit gaming or bingo on its reservation, and (2) authorized its negotiators in Washington to accept federal legislation prohibiting gaming on tribal lands as an alternative to state regulation. Id., at 123. Before us, Texas does not question that the Tribe was (and remains) free to change its own laws after adopting that resolution. But, the State says, the fact that Congress referenced the tribal resolution in subsection (a) suggests that the Restoration Act should be read \"broadly\" to allow Texas to apply its gaming regulations on tribal lands. Brief for Respondent 22. It’s an unsatisfying suggestion for at least a few reasons. In the first place, while subsection (a) explains that the Restoration Act was \"enacted in accordance with\" the Tribe’s resolution, it does not purport to incorporate that resolution into federal law. Congress knows exactly how to adopt into federal law the terms of another writing or resolution when it wishes. It can and has said, for example, that a tribal law or resolution \"shall have the same force and effect as if it were set out in full in this subchapter.\" 25 U. S. C. § 5396(b). But even Texas does not suggest that Congress went that far in the Restoration Act. With that possibility shelved, it is hard to see what’s left. Texas suggests that Congress’s reference to the tribal resolution at least augurs in favor of a \"broa[d]\" reading of subsection (a). Brief for Respondent 22; see also post, at 9–10. But saying that tells us nothing about how much broader the law should be read. And, as we have seen, the only \"broader\" reading of subsection (a) Texas offers faces its challenges— it requires us to believe that subsection (a) swallows subsection (b) whole, makes a nullity of subsection (c), and defies Congress’s apparent adoption of Cabazon’s prohibitory/regulatory distinction. There is still another and maybe more fundamental problem here. On our interpretation of the Restoration Act, Congress did legislate \"in accordance with\" the Tribe’s resolution: It expressly granted the Tribe federal recognition and chose not to apply Texas gaming regulations as surrogate federal law on tribal land. Of course, Congress also sought to act in accordance with at least some of Texas’s concerns by banning those games fully barred by Texas law. In the end, it seems each got half a loaf. By contrast, adopting Texas’s alternative interpretation of the Restoration Act would make a mockery of Congress’s statement that it sought to act \"in accordance with\" the Tribe’s resolution. On the State’s view, all of its gaming regulations serve as surrogate federal law applicable on tribal lands. That’s a result few would dare to describe as \"accord[ing] with\" the tribal resolution. In fact, it’s an outcome more nearly the opposite of what the Tribe sought and closer to what it described as a \"wholly unsatisfactory . . . infringement upon the Tribe[’s] power of self government\" and \"[i]nconsistent with the central purposes of restoration of the federal trust relationship.\" App. to Pet. for Cert. 122. To be sure and as Texas and the dissent both highlight, the statutory terms Congress finally settled on were in some respects more generous to the Tribe than those its resolution authorized tribal negotiators in Washington to accept. Rather than ban all gaming on tribal lands, Congress banned only those games forbidden in Texas. But this development is hardly surprising either. The Tribe adopted its resolution in 1986 in connection with negotiations over a bill that eventually died in the Senate. See Brief for United States as Amicus Curiae 3–4, 30. As talks continued the following year, this Court issued Cabazon. And after that, as we have seen, Tribes across the country saw their negotiating \"position strengthened.\" Wood 1027, and n. 353; see also Part I–B, supra. The dissent omits these essential details from its account of how the Restoration Act became law. See post, at 3. That omission leads the dissent to overlook one plausible explanation for why the Tribe got the deal it did. It may be that, thanks to Cabazon, the Tribe’s representatives were able to persuade Congress to impose a less draconian ban—one that paralleled the terms this Court in Cabazon found applicable to many other Tribes under Public Law 280. Surely, too, as we have seen, if Congress had intended a more complete federal ban, it could have easily said so. Not by obliquely referencing a tribal resolution, but by saying so clearly, just as it did for both the Wampanoag and Catawba Tribes. See Part II–B, 4 supra. B In the end, Texas retreats to the usual redoubt of failing statutory interpretation arguments: an unadorned appeal to public policy. Echoing arguments voiced by the Cabazon dissent, the State argues that attempts to distinguish between prohibition and regulation are sure to prove \"unworkable.\" Brief for Respondent 29 (citing 480 U. S., at 224 (opinion of Stevens, J.)). Indeed, the State suggests that problems are likely to arise in this very case. Under our reading, Texas highlights, courts on remand might be called on to decide whether \"electronic bingo\" qualifies as \"bingo\" and thus a gaming activity merely regulated by Texas, or whether it constitutes an entirely different sort of gaming activity absolutely banned by Texas and thus forbidden as a matter of federal law. And, the State worries, any attempt to answer that question may require evidence, expert testimony, and further litigation. We appreciate these concerns, but they do not persuade us. Most fundamentally, they are irrelevant. It is not our place to question whether Congress adopted the wisest or most workable policy, only to discern and apply the policy it did adopt. If Texas thinks good governance requires a different set of rules, its appeals are better directed to those who make the laws than those charged with following them. Even on its own terms, we are not sure what to make of Texas’s policy argument. We do not doubt that the Restoration Act’s prohibitory/regulatory distinction can and will generate borderline cases. See F. Cohen, Handbook of Federal Indian Law 541–544 (N. Newton ed. 2012). It may even be that electronic bingo will prove such a case. But if applying the Act’s terms poses challenges, that hardly makes it unique among federal statutes. Nor is the line the Restoration Act asks us to enforce quite as unusual as Texas suggests. Courts have applied the same prohibitory/regulatory framework elsewhere in this country under Public Law 280 for decades. See id., at 541–547. IGRA, too, draws a similar line to assess the propriety of class II gaming on Indian reservations nationwide. See 25 U. S. C. § 2710(b)(1)(A); see also K. Washburn, Federal Law, State Policy, and Indian Gaming, 4 Nev. L. J. 285, 289–290 (2004). In fact, Texas Court concedes that another Tribe within its borders—the Kickapoo Traditional Tribe of Texas—is already subject to IGRA and offers class II games. See Tr. of Oral Arg. 91; see also Brief for United States as Amicus Curiae 32. Why something like the Cabazon test can work for one Tribe in Texas but not another is not exactly obvious. For that matter, Texas’s alternative interpretation poses its own \"workability\" challenges. Under the State’s reading, subsection (c) does not just charge federal courts with enforcing on tribal lands a federal law banning gaming activities also banned by state law. It also charges federal courts with enforcing the minutiae of state gaming regulations governing the conduct of permissible games—a role usually played by state gaming commissions or the National Indian Gaming Commission. It’s a highly unusual role for federal courts to assume. But on Texas’s view, it’s a role federal courts must assume, as indeed they have sought to do since Ysleta I. And far from yielding an easily administrable regime, by almost anyone’s account that project has engendered a quarter century of confusion and dispute. See Part I–C, supra. Texas contends that Congress in the Restoration Act has allowed all of its state gaming laws to act as surrogate federal law on tribal lands. The Fifth Circuit took the same view in Ysleta I and in the proceedings below. That understanding of the law is mistaken. The Restoration Act bans as a matter of federal law on tribal lands only those gaming activities also banned in Texas. To allow the Fifth Circuit to revise its precedent and reconsider this case in the correct light, its judgment is vacated, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "21-401", "syllabus": "These consolidated cases involve arbitration proceedings abroad for which a party sought discovery in the United States pursuant to 28 U. S. C. §1782(a)—a provision authorizing a district court to order the production of evidence \"for use in a proceeding in a foreign or international tribunal.\" In the first case, Luxshare, Ltd., a Hong Kong-based company, alleges fraud in a sales transaction with ZF Automotive US, Inc., a Michigan-based automotive parts manufacturer and subsidiary of a German corporation. The sales contract signed by the parties provided that all disputes would be resolved by three arbitrators under the Arbitration Rules of the German Institution of Arbitration e.V. (DIS), a private dispute-resolution organization based in Berlin. To prepare for a DIS arbitration against ZF, Luxshare filed an application under §1782 in federal court, seeking information from ZF and its officers. The District Court granted the request, and ZF moved to quash, arguing that the DIS panel was not a \"foreign or international tribunal\" under §1782. The District Court denied ZF’s motion. The Sixth Circuit denied a stay. The second case involves AB bankas SNORAS (Snoras), a failed Lithuanian bank declared insolvent and nationalized by Lithuanian authorities. The Fund for Protection of Investors’ Rights in Foreign States—a Russian corporation assigned the rights of a Russian investor in Snoras—initiated a proceeding against Lithuania under a bilateral investment treaty between Lithuania and Russia, claiming that Lithuania expropriated investments. Relevant here, the treaty establishes a procedure for resolving \"any dispute between one Contracting Party and [an] investor of the other Contracting Party concerning\" investments in the first Contracting Party’s territory, and offers parties four options for dispute resolution. App. to Pet. for Cert. in No. 21– 518, pp. 64a–65a. The Fund chose an ad hoc arbitration in accordance with Arbitration Rules of the United Nations Commission on International Trade Law, with each party selecting one arbitrator and those two choosing a third. After initiating arbitration, the Fund filed a §1782 application in federal court, seeking information from Simon Freakley, who was appointed as a temporary administrator of Snoras, and AlixPartners, LLP, a New York-based consulting firm where Freakley serves as CEO. AlixPartners resisted discovery, arguing that the ad hoc arbitration panel was not a \"foreign or international tribunal\" under §1782 but instead a private adjudicative body. The District Court rejected that argument and granted the Fund’s discovery request. The Second Circuit affirmed. Held: Only a governmental or intergovernmental adjudicative body constitutes a \"foreign or international tribunal\" under 28 U. S. C. §1782, and the bodies at issue in these cases do not qualify. Pp. 5–17. (a) Section 1782(a) provides that a district court may order discovery \"for use in a proceeding in a foreign or international tribunal.\" Standing alone, the word \"tribunal\" can be used either as a synonym for \"court,\" in which case it carries a distinctively governmental flavor, or more broadly to refer to any adjudicatory body. While a prior version of §1782 covered \"any judicial proceeding\" in \"any court in a foreign country,\" §1782 (1958 ed.), Congress later expanded the provision to cover proceedings in a \"foreign or international tribunal.\" That shift created \" ‘the possibility of U. S. judicial assistance in connection with administrative and quasi-judicial proceedings abroad.’ \" Intel Corp. v. Advanced Micro Devices, Inc., 542 U. S. 241, 258 (alterations omitted). But while a \"tribunal\" thus need not be a formal \"court,\" read in context—with \"tribunal\" attached to the modifiers \"foreign or international\"—§1782’s phrase is best understood to refer to an adjudicative body that exercises governmental authority. \"Foreign tribunal\" more naturally refers to a tribunal belonging to a foreign nation than to a tribunal that is simply located in a foreign nation. And for a tribunal to belong to a foreign nation, the tribunal must possess sovereign authority conferred by that nation. This reading of \"foreign tribunal\" is reinforced by the statutory defaults for discovery procedure under §1782, which permit district courts to prescribe the practice and procedure, \"which may be in whole or part the practice and procedure of the foreign country or the international tribunal.\" §1782(a) (emphasis added). The statute thus presumes that a \"foreign tribunal\" follows \"the practice and procedure of the foreign country.\" That the default discovery procedures for a \"foreign tribunal\" are governmental suggests that the body is governmental too. Similarly, an \"international tribunal\" is best understood as one that involves or is of two or more nations, meaning that those nations have imbued the tribunal with official power to adjudicate disputes. So understood, a \"foreign tribunal\" is a tribunal imbued with governmental authority by one nation, and an \"international tribunal\" is a tribunal imbued with governmental authority by multiple nations. Pp. 5–9. (b) Section 1782’s focus on governmental and intergovernmental tribunals is confirmed by both the statute’s history and a comparison to the Federal Arbitration Act. From 1855 until 1964, §1782 and its antecedents covered assistance only to foreign \"courts.\" Congress established the Commission on International Rules of Judicial Procedure, see §§1–2, 72 Stat. 1743, and charged the Commission with improving the process of judicial assistance, specifying that the \"assistance and cooperation\" was \"between the United States and foreign countries\" and that \"the rendering of assistance to foreign courts and quasi-judicial agencies\" should be improved. Ibid. (emphasis added). In 1964, Congress adopted the Commission’s proposed legislation, which became the modern version of §1782. Interpreting §1782 to reach only bodies exercising governmental authority is consistent with Congress’ charge to the Commission. The animating purpose of §1782 is comity: Permitting federal courts to assist foreign and international governmental bodies promotes respect for foreign governments and encourages reciprocal assistance. It is difficult to see how enlisting district courts to help private bodies adjudicating purely private disputes abroad would serve that end. Extending §1782 to include private bodies would also be in significant tension with the FAA, which governs domestic arbitration, because §1782 permits much broader discovery than the FAA allows. Interpreting §1782 to reach private arbitration would therefore create a notable mismatch between foreign and domestic arbitration. Pp. 9– 11. (c) The adjudicative bodies in these cases are not governmental or intergovernmental tribunals that fall within §1782. The dispute between Luxshare and ZF involves private parties that agreed in a private contract that DIS, a private dispute-resolution organization, would arbitrate any disputes between them. No government is involved in creating the DIS panel or prescribing its procedures. Contrary to Luxshare’s suggestion, a commercial arbitral panel like the DIS panel does not qualify as governmental simply because the law of the country in which it would sit (here, Germany) governs some aspects of arbitration and courts play a role in enforcing arbitration agreements. The ad hoc arbitration panel at issue in the Fund’s dispute with Lithuania presents a harder question. A sovereign is on one side of the dispute, and the option to arbitrate is contained in an international treaty rather than a private contract. Yet neither Lithuania’s presence nor the treaty’s existence is dispositive, because Russia and Lithuania are free to structure investor-state dispute resolution as they see fit. What matters is whether the two nations intended to confer governmental authority on an ad hoc panel formed pursuant to the treaty. See BG Group plc v. Republic of Argentina, 572 U. S. 25, 37. The treaty offers a choice of four forums to resolve disputes. The inclusion of courts as one option for dispute resolution reflects Russia and Lithuania’s intent to give investors the choice of bringing their disputes before a pre-existing governmental body. By contrast, the ad hoc arbitration panel is not a pre-existing body, but one formed for the purpose of adjudicating investor-state disputes. Nothing in the treaty reflects Russia and Lithuania’s intent that an ad hoc panel exercise governmental authority. The ad hoc panel has authority because Lithuania and the Fund consented to the arbitration, not because Russia and Lithuania clothed the panel with governmental authority. Any similarities between the ad hoc arbitration panel and other adjudicatory bodies from the past are not dispositive. For purposes of §1782, the inquiry is whether the features of the adjudicatory body and other evidence establish the intent of the relevant nations to imbue the body in question with governmental authority. Pp. 11–16. No. 21–401, reversed; No. 21–518, 5 F. 4th 216, reversed.", "opinion": "Congress has long allowed federal courts to assist foreign or international adjudicative bodies in evidence gathering. The current statute, 28 U. S. C. §1782, permits district courts to order testimony or the production of evidence \"for use in a proceeding in a foreign or international tribunal.\" These consolidated cases require us to decide whether private adjudicatory bodies count as \"foreign or international tribunals.\" They do not. The statute reaches only governmental or intergovernmental adjudicative bodies, and neither of the arbitral panels involved in these cases fits that bill. I Both cases before us involve a party seeking discovery in the United States for use in arbitration proceedings abroad. In both, the party seeking discovery invoked §1782, which permits a district court to order the production of certain evidence \"for use in a proceeding in a foreign or international tribunal.\" And in both, the party resisting discovery argued that the arbitral panel at issue did not qualify as a \"foreign or international tribunal\" under the statute. But while these cases present the same threshold legal question, their factual contexts differ. We discuss each in turn. A The first case involves an allegation of fraud in a business deal gone sour. ZF Automotive US, Inc., a Michigan-based automotive parts manufacturer and subsidiary of a German corporation, sold two business units to Luxshare, Ltd., a Hong Kong-based company, for almost a billion dollars. Luxshare claims that after the deal was done, it discovered that ZF had concealed information about the business units. As a result, Luxshare says, it overpaid by hundreds of millions of dollars. In the contract governing the sale, the parties had agreed that all disputes would be \"exclusively and finally settled by three (3) arbitrators in accordance with the Arbitration Rules of the German Institution of Arbitration e.V. (DIS).\" App. in No. 21–401, p. 93. DIS is a private dispute-resolution organization based in Berlin. The agreement, which is governed by German law, provides that arbitration take place in Munich and that the arbitration panel be formed by Luxshare and ZF each choosing one arbitrator and those two arbitrators choosing a third. With an eye toward initiating a DIS arbitration against ZF, Luxshare filed an ex parte application under §1782 in the U. S. District Court for the Eastern District of Michigan, seeking information from ZF and two of its senior officers. (Section 1782 allows a party to obtain discovery even in advance of a proceeding. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U. S. 241, 259 (2004).) The District Court granted the request, and Luxshare served subpoenas on ZF and the officers. ZF moved to quash the subpoenas, arguing (among other things) that the DIS panel was not a \"foreign or international tribunal\" under §1782. As ZF acknowledged, however, Circuit precedent foreclosed that argument. See Abdul Latif Jameel Transp. Co. v. FedEx Corp., 939 F. 3d 710 (CA6 2019). The District Court ordered ZF to produce documents and an officer to sit for a deposition, and the Sixth Circuit denied ZF’s request for a stay. We granted a stay and certiorari before judgment to resolve a split among the Courts of Appeals over whether the phrase \"foreign or international tribunal\" in §1782 includes private arbitral panels. Compare Servotronics, Inc. v. Boeing Co., 954 F. 3d 209 (CA4 2020); Abdul Latif, 939 F. 3d 710, with National Broadcasting Co. v. Bear Stearns & Co., 165 F. 3d 184 (CA2 1999); Republic of Kazakhstan v. Biedermann Int’l, 168 F. 3d 880 (CA5 1999); Servotronics, Inc. v. Rolls-Royce PLC, 975 F. 3d 689 (CA7 2020). B The second case began with a dispute between Lithuania and a disappointed Russian investor in AB bankas SNORAS (Snoras), a failed Lithuanian bank. After finding Snoras unable to meet its obligations, Lithuania’s central bank nationalized it and appointed Simon Freakley, currently the CEO of a New York-based consulting firm called AlixPartners, LLP, as a temporary administrator. After Freakley issued a report on Snoras’ financial status, Lithuanian authorities commenced bankruptcy proceedings and declared Snoras insolvent. The Fund for Protection of Investors’ Rights in Foreign States—a Russian corporation and the assignee of the Russian investor—claims that Lithuania expropriated certain investments from Snoras along the way. The Fund initiated a proceeding against Lithuania under a bilateral investment treaty between Lithuania and Russia (titled \"Agreement Between the Government of the Russian Federation and the Government of the Republic of Lithuania on the Promotion and Reciprocal Protection of the Investments\"). App. to Pet. for Cert. in No. 21–518, p. 56a. The treaty seeks to promote \"favourable conditions for investments made by investors of one Contracting Party in the territory of the other Contracting Party.\" Ibid. Relevant here, the treaty addresses the procedure for resolving \"any dispute between one Contracting Party and [an] investor of the other Contracting Party concerning\" investments in the first Contracting Party’s territory. Id., at 64a. It provides that if the parties cannot resolve their dispute within six months, \"the dispute, at the request of either party and at the choice of an investor, shall be submitted to\" one of four specified forums. Id., at 64a–65a. The Fund chose \"an ad hoc arbitration in accordance with Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL),\" with each party selecting one arbitrator and those two choosing a third. Id., at 65a; App. in No. 21–518, p. 159a. Under the treaty, \"[t]he arbitral decision shall be final and binding on both parties of the dispute.\" App. to Pet. for Cert. in No. 21–518, at 65a. After initiating arbitration, but before the selection of arbitrators, the Fund filed a §1782 application in the U. S. District Court for the Southern District of New York, seeking information from Freakley and AlixPartners about Freakley’s role as temporary administrator of Snoras. AlixPartners resisted discovery, arguing that the ad hoc arbitration panel was not a \"foreign or international tribunal\" under §1782 but instead a private adjudicative body. The District Court rejected that argument and granted the Fund’s discovery request. The Second Circuit affirmed. Unlike the Sixth Circuit, the Second Circuit had previously held that a private arbitration panel does not constitute a \"foreign or international tribunal\" under §1782. See National Broadcasting Co., 165 F. 3d 184. But it still had to decide how to classify the ad hoc panel that would adjudicate the dispute between the Fund and Lithuania. After employing a multifactor test to determine \"‘whether the body in question possesses the functional attributes most commonly associated with private arbitration,’\" it concluded that the ad hoc panel was \"foreign or international\" rather than private. 5 F. 4th 216, 225, 228 (2021). We granted certiorari and consolidated the two cases. 595 U. S. ___ (2021). II We begin with the question whether the phrase \"foreign or international tribunal\" in §1782 includes private adjudicative bodies or only governmental or intergovernmental bodies. If the former, all agree that §1782 permits discovery to proceed in both cases. If the latter, we must determine whether the arbitral panels in these cases qualify as governmental or intergovernmental bodies. A Section 1782(a) provides: \"The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.\" The key phrase for purposes of this case is \"foreign or international tribunal.\" Standing alone, the word \"tribunal\" casts little light on the question. It can be used as a synonym for \"court,\" in which case it carries a distinctively governmental flavor. See, e.g., Black’s Law Dictionary 1677 (4th ed. rev. 1968) (\"[t]he seat of a judge\" or \"a judicial court; the jurisdiction which the judges exercise\"). But it can also be used more broadly to refer to any adjudicatory body. See, e.g., American Heritage Dictionary 1369 (1969) (\"[a]nything having the power of determining or judging\"). Here, statutory history indicates that Congress used \"tribunal\" in the broader sense. A prior version of §1782 covered \"any judicial proceeding\" in \"any court in a foreign country,\" 28 U. S. C. §1782 (1958 ed.), but in 1964, Congress expanded the provision to cover proceedings in a \"foreign or international tribunal.\" As we have previously observed, that shift created \"‘the possibility of U. S. judicial assistance in connection with administrative and quasi-judicial proceedings abroad.’\" Intel, 542 U. S., at 258 (alterations omitted). So a §1782 \"tribunal\" need not be a formal \"court,\" and the broad meaning of \"tribunal\" does not itself exclude private adjudicatory bodies.1 If we had nothing but this single word to go on, there would be a good case for including private arbitral panels. This is where context comes in. \"Tribunal\" does not stand alone—it belongs to the phrase \"foreign or international tribunal.\" And attached to these modifiers, \"tribunal\" is best understood as an adjudicative body that exercises governmental authority.2 Cf. FCC v. AT&T Inc., 562 U. S. 397, 406 (2011) (\"[T]wo words together may assume a more particular meaning than those words in isolation\"). Take \"foreign tribunal\" first. Congress could have used \"foreign\" in one of two ways here. It could mean something like \"[b]elonging to another nation or country,\" which would support reading \"foreign tribunal\" as a governmental body. Black’s Law Dictionary, at 775. Or it could more generally mean \"from\" another country, which would sweep in private adjudicative bodies too. See, e.g., Random House Dictionary of the English Language 555 (1966) (\"derived from another country or nation; not native\"). The first meaning is the better fit. The word \"foreign\" takes on its more governmental meaning when modifying a word with potential governmental or sovereign connotations. That is why \"foreign\" suggests something different in the phrase \"foreign leader\" than it does in \"foreign films.\" Brief for Petitioners in No. 21–401, pp. 20–21; Brief for Respondent in No. 21–401, pp. 7–8. The phrase \"foreign leader\" brings to mind \"an official of a foreign state, not a team captain of a European football club.\" Brief for United States as Amicus Curiae 17. So too with \"foreign tribunal.\" \"Tribunal\" is a word with potential governmental or sovereign connotations, so \"foreign tribunal\" more naturally refers to a tribunal belonging to a foreign nation than to a tribunal that is simply located in a foreign nation. And for a tribunal to belong to a foreign nation, the tribunal must possess sovereign authority conferred by that nation. See id., at 14–15 (a governmental adjudicator is \"one whose role in deciding the dispute rests on\" a \"nation’s sovereign authority\"). This reading of \"foreign tribunal\" is reinforced by the statutory defaults for discovery procedure. In addition to authorizing district courts to order testimony or the production of evidence, §1782 permits them to \"prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing.\" §1782(a) (emphasis added). The reference to the procedure of \"the foreign country or the international tribunal\" parallels the authorization for district courts to grant discovery for use in a \"foreign or international tribunal\" mentioned just before in §1782. The statute thus presumes that a \"foreign tribunal\" follows \"the practice and procedure of the foreign country.\" It is unremarkable for the statute to presume that a foreign court, quasi-judicial body, or any other governmental adjudicatory body follows the practice and procedures prescribed by the government that conferred authority on it.3 But that would be an odd assumption to make about a private adjudicatory body, which is typically the creature of an agreement between private parties who prescribe their own rules. See Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662, 683 (2010). That the default discovery procedures for a \"foreign tribunal\" are governmental suggests that the body is governmental too. Now for \"international tribunal.\" \"International\" can mean either (1) involving or of two or more \"nations,\" or (2) involving or of two or more \"nationalities.\" American Heritage Dictionary, at 685 (\"[o]f, relating to, or involving two or more nations or nationalities\"); see also Random House Dictionary, at 743 (\"between or among nations; involving two or more nations\"; \"of or pertaining to two or more nations or their citizens\"). The latter definition is unlikely in this context because an adjudicative body would be \"international\" if it had adjudicators of different nationalities— and it would be strange for the availability of discovery to turn on the national origin of the adjudicators. So no party argues that \"international\" carries that meaning here. A tribunal is \"international\" when it involves or is of two or more nations, meaning that those nations have imbued the tribunal with official power to adjudicate disputes. See Tr. of Oral Arg. 77 (the United States arguing that \"the touchstone\" is whether the body is \"exercising official power on behalf of the two governments\"). So understood, \"foreign tribunal\" and \"international tribunal\" complement one another; the former is a tribunal imbued with governmental authority by one nation, and the latter is a tribunal imbued with governmental authority by multiple nations. B Section 1782’s focus on governmental and intergovernmental tribunals is confirmed by both the statute’s history and a comparison to the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq. From the start, the statute has been about respecting foreign nations and the governmental and intergovernmental bodies they create. From 1855 until 1964, §1782 and its antecedents covered assistance only to foreign \"courts.\" See Act of Mar. 2, 1855, ch. 140, §2, 10 Stat. 630; Act of Mar. 3, 1863, ch. 95, §1, 12 Stat. 769; Act of Feb. 27, 1877, ch. 69, §875, 19 Stat. 241; Act of June 25, 1948, ch. 646, §1782, 62 Stat. 949; 28 U. S. C. §1782 (1958 ed.). And before 1964, a separate strand of law covered assistance to \"‘any international tribunal or commission . . . in which the United States participate[d] as a party.’\" Act of June 7, 1933, ch. 50, 48 Stat. 117. The process of combining these two statutory lines began when Congress established the Commission on International Rules of Judicial Procedure. See Act of Sept. 2, 1958, Pub. L. 85–906, §§1–2, 72 Stat. 1743. It charged the Commission with improving the process of judicial assistance, specifying that the \"assistance and cooperation\" was \"between the United States and foreign countries\" and that \"the rendering of assistance to foreign courts and quasi-judicial agencies\" should be improved. Ibid. (emphasis added). In 1964, Congress adopted the Commission’s proposed legislation, which became the modern version of §1782. Interpreting §1782 to reach only bodies exercising governmental authority is consistent with Congress’ charge to the Commission. Seen in light of the statutory history, the amendment did not signal an expansion from public to private bodies, but rather an expansion of the types of public bodies covered. By broadening the range of governmental and intergovernmental bodies included in §1782, Congress increased the \"assistance and cooperation\" rendered by the United States to those nations. After all, the animating purpose of §1782 is comity: Permitting federal courts to assist foreign and international governmental bodies promotes respect for foreign governments and encourages reciprocal assistance. It is difficult to see how enlisting district courts to help private bodies would serve that end. Such a broad reading of §1782 would open district court doors to any interested person seeking assistance for proceedings before any private adjudicative body—a category broad enough to include everything from a commercial arbitration panel to a university’s student disciplinary tribunal. See Brief for Petitioners in No. 21–401, at 19. Why would Congress lend the resources of district courts to aid purely private bodies adjudicating purely private disputes abroad? Extending §1782 to include private bodies would also be in significant tension with the FAA, which governs domestic arbitration, because §1782 permits much broader discovery than the FAA allows. Among other differences, the FAA permits only the arbitration panel to request discovery, see 9 U. S. C. §7, while district courts can entertain §1782 requests from foreign or international tribunals or any \"interested person,\" 28 U. S. C. §1782(a). In addition, prearbitration discovery is off the table under the FAA but broadly available under §1782. See Intel, 542 U. S., at 259 (holding that discovery is available for use in proceedings \"within reasonable contemplation\"). Interpreting §1782 to reach private arbitration would therefore create a notable mismatch between foreign and domestic arbitration. And as the Seventh Circuit observed, \"[i]t’s hard to conjure a rationale for giving parties to private foreign arbitrations such broad access to federal-court discovery assistance in the United States while precluding such discovery assistance for litigants in domestic arbitrations.\" Rolls-Royce, 975 F. 3d, at 695. In sum, we hold that §1782 requires a \"foreign or international tribunal\" to be governmental or intergovernmental. Thus, a \"foreign tribunal\" is one that exercises governmental authority conferred by a single nation, and an \"international tribunal\" is one that exercises governmental authority conferred by two or more nations. Private adjudicatory bodies do not fall within §1782. III That leaves the question whether the adjudicative bodies in the cases before us are governmental or intergovernmental. They are not. A Analyzing the status of the arbitral panel involved in Luxshare’s dispute with ZF is straightforward. Private parties agreed in a private contract that DIS, a private disputeresolution organization, would arbitrate any disputes between them. See Stolt-Nielsen, 559 U. S., at 682 (\"[A]n arbitrator derives his or her powers from the parties’ agreement to forgo the legal process and submit their disputes to private dispute resolution\"). By default, DIS panels operate under DIS rules, just like panels of any other private arbitration organization operate under private arbitral rules. The panels are formed by the parties—with each party selecting one arbitrator and those two arbitrators choosing a third. No government is involved in creating the DIS panel or prescribing its procedures. This adjudicative body therefore does not qualify as a governmental body. Luxshare weakly suggests that a commercial arbitral panel like the DIS panel qualifies as governmental so long as the law of the country in which it would sit (here, Germany) governs some aspects of arbitration and courts play a role in enforcing arbitration agreements. See Brief for Respondent in No. 21–401, at 26–27; Boeing, 954 F. 3d, at 213–214. But private entities do not become governmental because laws govern them and courts enforce their contracts—that would erase any distinction between private and governmental adjudicative bodies. Luxshare’s implausibly broad definition of a governmental adjudicative body is nothing but an attempted end run around §1782’s limit. B The ad hoc arbitration panel at issue in the Fund’s dispute with Lithuania presents a harder question. A sovereign is on one side of the dispute, and the option to arbitrate is contained in an international treaty rather than a private contract. These factors, which the Fund emphasizes, offer some support for the argument that the ad hoc panel is intergovernmental. Yet neither Lithuania’s presence nor the Court treaty’s existence is dispositive, because Russia and Lithuania are free to structure investor-state dispute resolution as they see fit. What matters is the substance of their agreement: Did these two nations intend to confer governmental authority on an ad hoc panel formed pursuant to the treaty? See BG Group plc v. Republic of Argentina, 572 U. S. 25, 37 (2014) (\"As a general matter, a treaty is a contract, though between nations,\" and \"[i]ts interpretation normally is, like a contract’s interpretation, a matter of determining the parties’ intent\"). The provision regarding ad hoc arbitration appears in Article 10, which permits an investor to choose one of four forums to resolve disputes: \"a) [a] competent court or court of arbitration of the Contracting Party in which territory the investments are made; \"b) the Arbitration Institute of the Stockholm Chamber of Commerce; \"c) the Court of Arbitration of the International Chamber of Commerce; \"d) an ad hoc arbitration in accordance with Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL).\" App. to Pet. for Cert. in No. 21–518, at 64a–65a. The options on this menu vary in form. For example, a \"competent court or court of arbitration of the Contracting Party\" (i.e., the state in which an investor does business) is clearly governmental; a court \"of\" a sovereign belongs to that sovereign. The inclusion of courts on the list reflects Russia and Lithuania’s intent to give investors the choice of bringing their disputes before a pre-existing governmental body. An ad hoc arbitration panel, by contrast, is not a pre-existing body, but one formed for the purpose of adjudicating investor-state disputes. And nothing in the treaty reflects Russia and Lithuania’s intent that an ad hoc panel exercise governmental authority. For instance, the treaty does not itself create the panel; instead, it simply references the set of rules that govern the panel’s formation and procedure if an investor chooses that forum. In addition, the ad hoc panel \"functions independently\" of and is not affiliated with either Lithuania or Russia. 5 F. 4th, at 226. It consists of individuals chosen by the parties and lacking any \"official affiliation with Lithuania, Russia, or any other governmental or intergovernmental entity.\" Ibid. And it lacks other possible indicia of a governmental nature. See ibid. (\"[T]he panel receives zero government funding,\" \"the proceedings . . . maintain confidentiality,\" and the \"‘award may be made public only with the consent of both parties’\").4 Indeed, the ad hoc panel at issue in the Fund’s dispute with Lithuania is \"materially indistinguishable in form and function\" from the DIS panel resolving the dispute between ZF and Luxshare. Brief for George A. Bermann et al. as Amici Curiae 19. In a private arbitration, the panel derives its authority from the parties’ consent to arbitrate. The ad hoc panel in this case derives its authority in essentially the same way. Russia and Lithuania each agreed in the treaty to submit to ad hoc arbitration if an investor chose it. The Fund took Lithuania up on that offer by initiating such an arbitration, thereby triggering the formation of an ad hoc panel with the authority to resolve the parties’ dispute. That authority exists because Lithuania and the Fund consented to the arbitration, not because Russia and Lithuania clothed the panel with governmental authority. Cf. Granite Rock Co. v. Teamsters, 561 U. S. 287, 299 (2010) (\"[T]he first principle that underscores all of our arbitration decisions\" is that \"[a]rbitration is strictly ‘a matter of consent’\"); AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 648–649 (1986) (\"[A]rbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration\"). So inclusion in the treaty does not, as the Fund suggests, automatically render ad hoc arbitration governmental. Instead, it reflects the countries’ choice to offer investors the potentially appealing option of bringing their disputes to a private arbitration panel that operates like commercial arbitration panels do. In a treaty designed to attract foreign investors by offering \"favourable conditions for investments,\" App. to Pet. for Cert. in No. 21–518, at 56a, that choice makes sense. None of this forecloses the possibility that sovereigns might imbue an ad hoc arbitration panel with official authority. Governmental and intergovernmental bodies may take many forms, and we do not attempt to prescribe how they should be structured. The point is only that a body does not possess governmental authority just because nations agree in a treaty to submit to arbitration before it. The relevant question is whether the nations intended that the ad hoc panel exercise governmental authority. And here, all indications are that they did not. The Fund tries to bolster its case by analogizing to past adjudicatory bodies: (1) the body at issue in the dispute over the sinking of the Canadian ship I’m Alone, which derived from a treaty between the United States and Great Britain; and (2) the United States-Germany Mixed Claims Commission. There appears to be broad consensus that these bodies would qualify as intergovernmental. Ergo, the Fund says, the ad hoc panel must be intergovernmental too. This does not follow. It is not dispositive whether an adjudicative body shares some features of other bodies that look governmental. Instead, the inquiry is whether those features and other evidence establish the intent of the relevant nations to imbue the body in question with governmental authority. And though we need not decide the status of the I’m Alone and Mixed Claims commissions, it is worth noting some differences between the treaties providing for them and the treaty at issue here. For instance, those treaties specified that each sovereign would be involved in the formation of the bodies, and, with respect to the treaty creating the Mixed Claims Commission in particular, it also specified where the commission would initially meet, the method of funding, and that the commissioners could appoint other officers to assist in the proceedings. See Convention Between the United States and Great Britain for Prevention of Smuggling of Intoxicating Liquors, Art. IV, Jan. 23, 1924, 43 Stat. 1761–1762, T. S. No. 685; Agreement Between the United States and Germany for a Mixed Commission to Determine the Amount To Be Paid by Germany in Satisfaction of Germany’s Financial Obligations Under the Treaty Concluded Between the Two Governments on August 25, 1921, Arts. II, III, IV, V, Aug. 10, 1922, 42 Stat. 2200, T. S. No. 665. So while there are some similarities between the ad hoc arbitration panel and the I’m Alone and Mixed Claims commissions, there are distinctions too. Thus, even taking the Fund’s argument on its own terms, its analogies are less helpful than it hopes. In sum, only a governmental or intergovernmental adjudicative body constitutes a \"foreign or international tribunal\" under §1782. Such bodies are those that exercise governmental authority conferred by one nation or multiple nations. Neither the private commercial arbitral panel in the first case nor the ad hoc arbitration panel in the second case qualifies. We reverse the order of the District Court in No. 21–401 denying the motion to quash, and we reverse the judgment of the Court of Appeals in No. 21–518."},
{"docket_number": "19-896", "syllabus": "Respondent Antonio Arteaga-Martinez is a citizen of Mexico who was removed in July 2012 and reentered the United States in September 2012. U. S. Immigration and Customs Enforcement (ICE) issued a warrant for Arteaga-Martinez’s arrest in 2018. ICE reinstated Arteaga-Martinez’s earlier removal order and detained him pursuant to its authority under the Immigration and Nationality Act. See 8 U. S. C. §1231(a). Arteaga-Martinez applied for withholding of removal under §1231(b)(3), as well as relief under regulations implementing the Convention Against Torture, based on his fear that he would be persecuted or tortured if he returned to Mexico. An asylum officer determined he had established a reasonable fear of persecution or torture, and the Department of Homeland Security referred him for withholding-only proceedings before an immigration judge. After being detained for four months, Arteaga-Martinez filed a petition for a writ of habeas corpus in District Court challenging, on both statutory and constitutional grounds, his continued detention without a bond hearing. The Government conceded that Arteaga-Martinez would be entitled to a bond hearing after six months of detention based on circuit precedent holding that a noncitizen facing prolonged detention under §1231(a)(6) is entitled by statute to a bond hearing before an immigration judge and must be released unless the Government establishes, by clear and convincing evidence, that the noncitizen poses a risk of flight or a danger to the community. The District Court granted relief on Arteaga-Martinez’s statutory claim and ordered the Government to provide Arteaga-Martinez a bond hearing. The Third Circuit summarily affirmed. At the bond hearing, the Immigration Judge considered Arteaga-Martinez’s flight risk and dangerousness and ultimately authorized his release pending resolution of his application for withholding of removal. Held: Section 1231(a)(6) does not require the Government to provide noncitizens detained for six months with bond hearings in which the Government bears the burden of proving, by clear and convincing evidence, that a noncitizen poses a flight risk or a danger to the community. Pp. 4–10. (a) Section 1231(a)(6) cannot be read to require the hearing procedures imposed below. After the entry of a final order of removal against a noncitizen, the Government generally must secure the noncitizen’s removal during a 90-day removal period, during which the Government \"shall\" detain the noncitizen. 8 U. S. C. §§1231(a)(1), (2). Beyond the removal period, §1231(a)(6) defines four categories of noncitizens who \"may be detained . . . and, if released, shall be subject to [certain] terms of supervision.\" There is no plausible construction of the text of §1231(a)(6) that requires the Government to provide bond hearings with the procedures mandated by the Third Circuit. The statute says nothing about bond hearings before immigration judges or burdens of proof, nor does it provide any other indication that such procedures are required. Faithfully applying precedent, the Court cannot discern the bond hearing procedures required below from §1231(a)(6)’s text. Pp. 4–6. (b) Arteaga-Martinez argues that §1231(a)(6)’s references to flight risk, dangerousness, and terms of supervision, support the relief ordered below. Similarly, respondents in the companion case, see Garland v. Gonzalez, 594 U. S. ___, analogize the text of §1231(a)(6) to that of 8 U. S. C. §1226(a), noting that noncitizens detained under §1226(a) have long received bond hearings at the outset of detention. Assuming without deciding that an express statutory reference to \"bond\" (as in §1226(a)) might be read to require an initial bond hearing, §1231(a)(6) contains no such reference, and §1231(a)(6)’s oblique reference to terms of supervision does not suffice. The parties agree that the Government possesses discretion to provide bond hearings under §1231(a)(6) or otherwise, but this Court cannot say the statute requires them. Finally, Arteaga-Martinez argues that Zadvydas v. Davis, 533 U. S. 678, which identified ambiguity in §1231(a)(6)’s permissive language, supports a view that §1231(a)(6) implicitly incorporates the specific bond hearing requirements and procedures imposed by the Court of Appeals. In Zadvydas, this Court construed §1231(a)(6) \"in light of the Constitution’s demands\" and determined that §1231(a)(6) \"does not permit indefinite detention\" but instead \"limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.\" 533 U. S., at 689. The bond hearing requirements articulated by the Third Circuit, however, reach substantially beyond the limitation on detention authority Zadvydas recognized. Zadvydas does not require, and Jennings v. Rodriguez, 583 U. S. ___, does not permit, the Third Circuit’s application of the canon of constitutional avoidance. Pp. 6–8. (c) Constitutional challenges to prolonged detention under §1231(a)(6) were not addressed below, in part because those courts read §1231(a)(6) to require a bond hearing. Arteaga-Martinez’s alternative theory that he is presumptively entitled to release under Zadvydas also was not addressed below. The Court leaves these arguments for the lower courts to consider in the first instance. See Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7. Pp. 8–10. Reversed and remanded.", "opinion": "Section 241(a) of the Immigration and Nationality Act (INA), codified at 8 U. S. C. §1231(a), authorizes the detention of noncitizens who have been ordered removed from the United States. See 110 Stat. 3009–598. In particular, §1231(a)(6) provides that after a 90-day \"removal period,\" a noncitizen \"may be detained\" or may be released under terms of supervision. This Court recently held that §1231(a) applies to individuals who are removed and who then reenter without authorization and apply for withholding of removal based on a fear that they will be persecuted or tortured if returned to their countries of origin. See Johnson v. Guzman Chavez, 594 U. S. ___, ___ (2021) (slip op., at 1). The issue in this case is whether the text of §1231(a)(6) requires the Government to offer detained noncitizens bond hearings after six months of detention in which the Government bears the burden of proving by clear and convincing evidence that a noncitizen poses a flight risk or a danger to the community. It does not. I Respondent Antonio Arteaga-Martinez is a citizen of Mexico. He admits that he has entered the United States without inspection four times. He first entered in March 2001 and was detained at the border and removed; he reentered in April of that year. Ten years later, in 2011, he left the country to care for his sick mother, reentering in July of the following year. The Government again detained him at the border, determined he was inadmissible, and removed him. Arteaga-Martinez represents that, after returning to Mexico, he was beaten violently by members of a criminal street gang. Fearing that he would be persecuted or tortured again with the acquiescence of government officials, he reentered the United States in September 2012. In May 2018, U. S. Immigration and Customs Enforcement (ICE) issued a warrant for Arteaga-Martinez’s arrest. By then, he had been living and working in the United States for nearly six years and was expecting the birth of his first child. He had no criminal record aside from minor traffic violations. ICE detained Arteaga-Martinez without any opportunity for bond and reinstated his earlier removal order. Arteaga-Martinez applied for withholding of removal under §1231(b)(3), as well as relief under regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U. N. T. S. 113. The Department of Homeland Security (DHS) referred ArteagaMartinez to an asylum officer, who found that ArteagaMartinez’s testimony was credible and that he had established a reasonable fear of persecution or torture. As a result, DHS referred Arteaga-Martinez’s claims for adjudication by an immigration judge in what we have called \"withholding-only proceedings.\" Guzman Chavez, 594 U. S., at ___ (slip op., at 6). Pending these proceedings, however, the Government continued to detain ArteagaMartinez pursuant to §1231(a)(6).1 In September 2018, after he had been detained for four months without a hearing, Arteaga-Martinez filed a petition for a writ of habeas corpus in the U. S. District Court for the Middle District of Pennsylvania. His petition challenged his continued detention without a bond hearing on both statutory and constitutional grounds. Shortly thereafter, in a separate case, the Third Circuit held that a noncitizen facing prolonged detention under §1231(a)(6) is entitled by statute to a bond hearing before an immigration judge and must be released from detention unless the Government establishes, by clear and convincing evidence, that the noncitizen poses a risk of flight or a danger to the community. See Guerrero-Sanchez v. Warden York County Prison, 905 F. 3d 208, 224, and n. 12 (2018). The Government conceded that under Guerrero-Sanchez, Arteaga-Martinez would be entitled to a bond hearing pursuant to §1231(a)(6) as of November 4, 2018, six months after the start of his detention. See App. to Pet. for Cert. 4a. Once Arteaga-Martinez’s time in detention had reached nearly six months, a Magistrate Judge recommended that the District Court grant a writ of habeas corpus on ArteagaMartinez’s statutory claim and order the Government to provide him an individualized bond hearing before an immigration judge. Id., at 4a–5a. The District Court adopted the report and recommendation and ordered a bond hearing. Id., at 3a. The Government appealed. The Court of Appeals summarily affirmed, citing its earlier decision in GuerreroSanchez. See App. to Pet. for Cert. 1a–2a. Arteaga-Martinez received a bond hearing at which an Immigration Judge, considering Arteaga-Martinez’s flight risk and dangerousness, authorized his release on bond. Arteaga-Martinez posted bond and was released pending a final determination on his application for withholding of removal, which, as of today, the Immigration Judge has yet to make. Pet. for Cert. 6; Brief for Respondent 10–11. This Court granted certiorari. 594 U. S. ___ (2021).2 II A The INA establishes procedures for the Government to use when removing certain noncitizens from the United States and, in some cases, detaining them. The section at issue here, 8 U. S. C. §1231(a), governs the detention, release, and removal of individuals \"ordered removed.\" This Court has held that §1231(a) applies to individuals with pending withholding-only proceedings. See Guzman Chavez, 594 U. S., at ___–___ (slip op., at 7–8). After the entry of a final order of removal against a noncitizen, the Government generally must secure the noncitizen’s removal during a 90-day \"‘removal period.’\" §1231(a)(1)(A). The statute provides that the Government \"shall\" detain noncitizens during the statutory removal period. §1231(a)(2). After the removal period expires, the Government \"may\" detain only four categories of people: (1) those who are \"inadmissible\" on certain specified grounds; (2) those who are \"removable\" on certain specified grounds; (3) those it determines \"to be a risk to the community\"; and (4) those it determines to be \"unlikely to comply with the order of removal.\" §1231(a)(6). Individuals released after the removal period remain subject to terms of supervision. Ibid. Section 1231(a)(6) does not expressly specify how long detention past the 90-day removal period may continue for those who fall within the four designated statutory categories. In Zadvydas v. Davis, 533 U. S. 678 (2001), the Court observed that the statute’s use of the term \"may\" introduces some ambiguity and \"does not necessarily suggest unlimited discretion.\" Id., at 697. The Court explained that \"[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem,\" noting that it had upheld noncriminal detention as consistent with the Due Process Clause of the Fifth Amendment only under certain narrow circumstances. Id., at 690. Accordingly, the Court applied the canon of constitutional avoidance and determined that \"read in light of the Constitution’s demands,\" §1231(a)(6) \"does not permit indefinite detention\" but instead \"limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.\" Id., at 689. Subsequently, in Jennings v. Rodriguez, 583 U. S. ___ (2018), this Court considered the text of other provisions of the INA that authorize detention. One such provision was §1226(a), which governs the detention of certain noncitizens present in the country who were inadmissible at the time of entry or who have been convicted of certain criminal offenses since they were admitted. Id., at ___ (slip op., at 4). Section 1226(a) provides that the attorney general \"may\" detain these noncitizens pending their removal proceedings and \"may release\" such individuals on \"bond . . . or conditional parole.\" 8 U. S. C. §§1226(a)(1), (2). Noncitizens detained under §1226(a) receive bond hearings after the Government initially detains them. See 8 CFR §§236.1(d)(1), 1236.1(d)(1) (2021). Relying on Zadvydas, the Ninth Circuit had interpreted §1226(a) to require additional, periodic bond hearings every six months, with the burden on the Government to prove by clear and convincing evidence that further detention was justified. Jennings, 583 U. S., at ___–___ (slip op., at 22–23). The Court in Jennings disagreed. It held that \"the meaning of the relevant statutory provisio[n] is clear\" and that it did not support a periodic bond hearing requirement. Id., at ___ (slip op., at 23). The Jennings Court also rejected the lower court’s application of the canon of constitutional avoidance. Earlier in its opinion, the Court explained that \"[t]he canon of constitutional avoidance ‘comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.’\" Id., at ___ (slip op., at 12) (quoting Clark v. Martinez, 543 U. S. 371, 385 (2005)). \"In the absence of more than one plausible construction, the canon simply has no application.\" Jennings, 583 U. S., at ___ (slip op., at 12) (internal quotation marks omitted). Applying this reasoning to §1226(a), the Court concluded that the canon was inapposite because \"[n]othing in §1226(a)’s text . . . even remotely supports the imposition of either of th[e] requirements\" the Ninth Circuit had imposed. Id., at ___ (slip op., at 23). B The question presented is whether §1231(a)(6) requires bond hearings before immigration judges after six months of detention in which the Government bears the burden of proving by clear and convincing evidence that a noncitizen poses a flight risk or a danger to the community. Section 1231(a)(6) provides that certain noncitizens who have been ordered removed \"may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision.\" This text, which does not address or \"even hin[t]\" at the requirements imposed below, directs that we answer this question in the negative. Id., at ___ (slip op., at 14). The Jennings Court emphasized that the canon of constitutional avoidance is only applicable where a statute has \"more than one plausible construction.\" Id., at ___ (slip op., at 12). Here, there is no plausible construction of the text of §1231(a)(6) that requires the Government to provide bond hearings before immigration judges after six months of detention, with the Government bearing the burden of proving by clear and convincing evidence that a detained noncitizen poses a flight risk or a danger to the community. Section 1231(a)(6) provides only that a noncitizen ordered removed \"may be detained beyond the removal period\" and if released, \"shall be subject to [certain] terms of supervision.\" On its face, the statute says nothing about bond hearings before immigration judges or burdens of proof, nor does it provide any other indication that such procedures are required. Faithfully applying our precedent, the Court can no more discern such requirements from the text of §1231(a)(6) than a periodic bond hearing requirement from the text of §1226(a). See id., at ___ (slip op., at 23). Section 1231(a)(6) therefore cannot be read to incorporate the procedures imposed by the courts below as a matter of textual command. Arteaga-Martinez responds that §1231(a)(6)’s references to flight risk, dangerousness, and \"‘terms of supervision’\" support the relief ordered below. Brief for Respondent 29– 30. Similarly, respondents in the companion case analogize the text of §1231(a)(6) to that of §1226(a), and they note that noncitizens detained under §1226(a) have long received bond hearings at the outset of detention. Brief for Respondents in Garland v. Gonzalez, O. T. 2021, No. 20–322, pp. 22–24. However, assuming without deciding that an express statutory reference to \"bond\" (as in §1226(a)) might be read to require an initial bond hearing, §1231(a)(6) contains no such reference. A more oblique reference to terms of supervision does not suffice. Respondents in the companion case also emphasize that regulations offer custody hearings before immigration judges for noncitizens the Government detains under §1231(a)(6) because it deems them \"specially dangerous.\" See 8 CFR §241.14; Brief for Respondents in No. 20–322, at 16, 25–26. They argue that if the statute can allow custody hearings for these individuals, it requires such hearings for those in Arteaga-Martinez’s situation as well. Federal agencies, however, \"are free to grant additional procedural rights in the exercise of their discretion.\" Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 524 (1978). \"[R]eviewing courts,\" on the other hand, \"are generally not free to impose them if the agencies have not chosen to grant them.\" Ibid. The parties do not dispute that the Government possesses discretion to provide bond hearings under §1231(a)(6), see Brief for Petitioners 15, but this Court cannot say, consistent with Jennings, that the statutory text requires them. Finally, Arteaga-Martinez argues that Zadvydas, which identified ambiguity in §1231(a)(6)’s permissive language, supports a view that §1231(a)(6) implicitly incorporates the specific bond hearing requirements and procedures enumerated by the Court of Appeals. In Jennings, however, this Court faulted the Ninth Circuit for going significantly further than Zadvydas. 583 U. S., at ___ (slip op., at 15). Jennings did not overrule or abrogate Zadvydas. But the detailed procedural requirements imposed by the Court of Appeals below reach substantially beyond the limitation on detention authority recognized in Zadvydas. Zadvydas does not require, and Jennings does not permit, the Third Circuit’s application of the canon of constitutional avoidance.3 C Separately from his statutory claims, Arteaga-Martinez contends that reading §1231(a)(6) not to require bond hearings when detention becomes prolonged \"raises serious due process concerns.\" Brief for Respondent 24. He points out that outside of the national-security context, this Court has never \"authorized prolonged detention without an individualized hearing, before a neutral adjudicator, at which the detainee has a meaningful opportunity to participate.\" Ibid. (collecting cases). He asserts that the Government’s interest in denying bond hearings is minimal because such hearings do not require release. Id., at 26 (citing Zadvydas, 533 U. S., at 696). And he argues that his status as an individual with a reinstated removal order \"‘bears no relation to [his] dangerousness,’\" as evidenced by the fact that an Immigration Judge authorized his release on bond. Brief for Respondent 26–27 (quoting Zadvydas, 533 U. S., at 692). The Government responds that regulations directing ICE officials to conduct administrative custody reviews for individuals in ICE detention provide adequate process, \"at least as a general matter.\" Brief for Petitioners 18–19. The Government contends that these regulations—which generally require a custody review at the end of the 90-day removal period, a second review by a panel at ICE headquarters after six months of detention, and subsequent annual reviews—provide constitutionally sufficient substantive and procedural protections for noncitizens whose detention is prolonged. Id., at 18. The Government also notes that as-applied constitutional challenges remain available to address \"exceptional\" cases. Id., at 21. \"[W]e are a court of review, not of first view.\" Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). The courts below did not reach Arteaga-Martinez’s constitutional claims because they agreed with him that the statute required a bond hearing. We leave them for the lower courts to consider in the first instance. See Jennings, 583 U. S., at ___ (slip op., at 29). Arteaga-Martinez also advances an alternative theory that he is presumptively entitled to release under Zadvydas because, in view of the length of time that withholding-only proceedings tend to take, his removal is not reasonably foreseeable. See Brief for Respondent 19–22. The Government disagrees on the merits and adds that the issue is not properly before this Court because it would alter the scope of the judgment below, which granted Arteaga-Martinez a bond hearing, not release. See Reply Brief 11–12 (citing Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 119, n. 14 (1985)). Again, we decline to reach this claim in the first instance. See Cutter, 544 U. S., at 718, n. 7. The judgment of the Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "20-322", "syllabus": "Respondents are aliens who were detained by the Federal Government pursuant to 8 U. S. C. §1231(a)(6) of the Immigration and Nationality Act (INA). Respondents Esteban Aleman Gonzalez and Jose Eduardo Gutierrez Sanchez—the named plaintiffs in the case that bears Aleman Gonzalez’s name—are natives and citizens of Mexico who were detained under §1231(a)(6) after reentering the United States illegally. They filed a putative class action in the United States District Court for the Northern District of California, alleging that aliens detained under §1231(a)(6) are entitled to bond hearings after six months’ detention. The District Court certified a class of similarly situated plaintiffs and \"enjoined [the Government] from detaining [respondents] and the class members pursuant to section 1231(a)(6) for more than 180 days without providing each a bond hearing.\" Gonzalez v. Sessions, 325 F. R. D. 616, 629. A divided panel of the Ninth Circuit affirmed. Aleman Gonzalez v. Barr, 955 F. 3d 762, 766. Respondent Edwin Flores Tejada—the named plaintiff in the case that bears his name—is a native and citizen of El Salvador. He likewise reentered the country illegally and was detained under §1231(a)(6). He filed suit in the Western District of Washington, alleging that §1231(a)(6) entitled him to a bond hearing. The District Court certified a class, granted partial summary judgment against the Government, and entered class-wide injunctive relief. A divided panel of the Ninth Circuit affirmed. Flores Tejada v. Godfrey, 954 F. 3d 1245, 1247. This Court granted certiorari and instructed the parties to brief the threshold question whether the District Courts had jurisdiction to entertain respondents’ requests for class-wide injunctive relief under the INA. Held: Section 1252(f )(1) of the INA deprived the District Courts of jurisdiction to entertain respondents’ requests for class-wide injunctive relief. Pp. 3–10. (a) Section 1252(f )(1) generally strips lower courts of \"jurisdiction or authority\" to \"enjoin or restrain the operation of \" certain provisions of the INA. The ordinary meaning of the terms \"enjoin\" and \"restrain\" bars the class-wide relief awarded by the two District Courts here. When a court \"enjoins\" conduct, it issues an \"injunction,\" which is a judicial order that \"tells someone what to do or not to do.\" Nken v. Holder, 556 U. S. 418, 428. The Court has suggested that \"restrain\" sometimes has a \"broad meaning\" that refers to judicial orders that \"inhibit\" particular actions, and at other times it has a \"narrower meaning\" that includes \"orders that stop (or perhaps compel)\" such acts. Direct Marketing Assn. v. Brohl, 575 U. S. 1, 12–13. In §1252(f )(1), the object of the verbs \"enjoin or restrain\" is the \"operation of \" certain provisions of the INA—provisions that charge the Federal Government with the implementation and enforcement of the immigration laws governing the inspection, apprehension, examination, and removal of aliens. See §§ 1221–1232. Putting these terms together, §1252(f )(1) generally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the referenced INA statutory provisions. Section 1252(f )(1) includes one exception to this general prohibition: The lower courts retain the authority to \"enjoin or restrain the operation of \" the relevant statutory provisions \"with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.\" In Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 481–482, the Court stated that §1252(f )(1) \"prohibits federal courts from granting classwide injunctive relief \" but \"does not extend to individual cases.\" Here, both District Courts entered injunctions requiring the Government to provide bond hearings, not only for respondents, but also for all other class members. Those orders \"enjoin or restrain the operation\" of §1231(a)(6) because they require officials to take actions that (in the Government’s view) are not required by §1231(a)(6) and to refrain from actions that (again in the Government’s view) are allowed by §1231(a)(6). Those injunctions thus interfere with the Government’s efforts to operate §1231(a)(6), and the injunctions do not fall within the exception for individualized relief because the injunctions were entered on behalf of entire classes of aliens. Pp. 3–7. (b) Respondents’ two counter-arguments fail. First, respondents contend that \"the operation\" of the covered immigration provisions means the operation of those provisions \"as properly interpreted\" and that what §1252(f )(1) bars are class-wide injunctions that prohibit the Government from doing what the statute allows or commands. Brief for Respondents 49 (emphasis added). The ordinary meaning of the language of §1252(f )(1) weighs against respondents’ interpretation. It is very common to refer to the \"unlawful\" or \"improper\" operation of something, and it is not apparent why the same cannot be said of a statute. The statutory context provides additional reasons to reject respondents’ reading. Respondents next argue that §1252(f )(1) allows class-wide relief so long as all the class members are \"individuals who already face enforcement action.\" Brief for Respondents 55 (emphasis added). But §1252(f )(1) refers to \"an individual,\" not \"individuals,\" and the Court has repeatedly stated that it bars class-wide injunctive relief. See, e.g., American-Arab Anti-Discrimination Comm., 525 U. S., at 481. Respondents argue that the absence of any express reference to class actions in §1252(f )(1)—unlike the express reference in §1252(e)(1)—suggests that no preclusion of class-wide relief was intended The Court is reluctant to give much weight to this negative inference; it is possible that §1252(f )(1) simply uses different language to bar class-wide injunctive relief. But a literal reading of the provision could also rule out efforts to obtain any injunctive relief that applies to multiple named plaintiffs. The Court has no occasion to adopt such an interpretation here. It is sufficient to hold that the class-wide injunctive relief awarded in these cases was unlawful. Pp. 7–10. 955 F. 3d 762 and 954 F. 3d 1245, reversed and remanded.", "opinion": "Respondents in these two cases are aliens who were detained by the Federal Government pursuant to 8 U. S. C. §1231(a)(6) pending removal from this country. Respondents sued in two Federal District Courts, alleging that §1231(a)(6) requires the Government to provide bond hearings in cases like theirs. Both District Courts certified classes, agreed with respondents’ claims on the merits, and entered class-wide injunctive relief. The Ninth Circuit affirmed both judgments in relevant part. We granted certiorari and instructed the parties to address whether another provision of the Immigration and Nationality Act, 66 Stat. 208, as amended, 8 U. S. C. §1252(f )(1), deprived the District Courts of jurisdiction to entertain respondents’ requests for class-wide injunctive relief. We hold that the statute has that effect, and we therefore reverse. I The two cases before us arise out of respondents’ detention pursuant to §1231(a)(6), which gives the Federal Government discretionary authority in specified circumstances to detain aliens who have been \"‘ordered removed’\" from the United States. See Johnson v. Arteaga-Martinez, 596 U. S. ___, ___–___ (2022) (slip op., at 4–5). Respondents Esteban Aleman Gonzalez and Jose Eduardo Gutierrez Sanchez—the named plaintiffs in the case that bears Aleman Gonzalez’s name—are natives and citizens of Mexico. They each reentered the United States illegally after being removed, and after they were apprehended, their prior orders of removal were \"reinstated\" as authorized by §1231(a)(5). They sought withholding of removal on the ground that they would be subject to torture or persecution if they were returned to Mexico. While they awaited proceedings before an immigration judge, they were detained under §1231(a)(6), and they then filed a putative class action in the United States District Court for the Northern District of California, alleging that aliens detained under §1231(a)(6) are entitled to bond hearings after six months’ detention. The District Court certified a class of similarly situated plaintiffs and \"enjoined [the Government] from detaining [respondents] and the class members pursuant to section 1231(a)(6) for more than 180 days without providing each a bond hearing.\" Gonzalez v. Sessions, 325 F. R. D. 616, 629 (2018). A divided panel of the Ninth Circuit affirmed. Compare Aleman Gonzalez v. Barr, 955 F. 3d 762, 766 (2020), with id., at 790 (Fernandez, J., dissenting). Respondent Edwin Flores Tejada—the named plaintiff in the case that bears his name—is a native and citizen of El Salvador. He likewise was previously ordered removed, reentered the country illegally, had his prior removal order reinstated, applied for withholding of removal, and was detained under §1231(a)(6). He filed suit in the Western District of Washington, likewise alleging (as relevant here) that §1231(a)(6) entitled him to a bond hearing. The District Court certified a class, granted partial summary judgment against the Government, and entered class-wide injunctive relief. See App. to Pet. for Cert. 110a; Report and Recommendation in Martinez Baños v. Asher, No. 2:16–cv– 01454 (WD Wash., Jan. 23, 2018) (ECF), Doc. 77–1, p. 2. A divided panel of the Ninth Circuit affirmed in relevant part. Compare Flores Tejada v. Godfrey, 954 F. 3d 1245, 1247 (2020), with id., at 1251 (Fernandez, J., concurring in part and dissenting in part). The Government petitioned for certiorari and asked us to decide whether an alien detained under §1231(a)(6) is entitled to a bond hearing. We granted that petition and instructed the parties to address the threshold question whether the District Courts had jurisdiction to entertain respondents’ requests for class-wide injunctive relief. 594 U. S. ___ (2021). II We hold that the District Courts exceeded their jurisdiction in awarding such relief. A 1 We begin with the text of §1252(f )(1), which provides: \"Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.\" (Emphasis added.) With one exception that we will discuss momentarily, the critical language in this provision strips lower courts of \"jurisdiction or authority\" to \"enjoin or restrain the operation of \" the relevant statutory provisions. The ordinary meaning of these terms bars the class-wide relief awarded by the two District Courts. The term \"to enjoin\" ordinarily means to \"require,\" \"command,\" or \"positively direct\" an action or to \"require a person to perform, . . . or to abstain or desist from, some act.\" Black’s Law Dictionary 529 (6th ed. 1990); see also Webster’s Third New International Dictionary 754 (1993) (defining \"enjoin\" to mean \"to direct, prescribe, or impose by order\"). When a court \"enjoins\" conduct, it issues an \"injunction,\" which is a judicial order that \"tells someone what to do or not to do.\" Nken v. Holder, 556 U. S. 418, 428 (2009); see also Black’s Law Dictionary, at 784 (defining an \"injunction\" as a \"court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury\"); 2 J. Story, Commentaries on Equity Jurisprudence §861, p. 178 (13th ed. 1886) (similar). The term \"to restrain\" means to \"check, hold back, or prevent (a person or thing) from some course of action.\" 5 Oxford English Dictionary 756 (2d ed. 1989) (emphasis deleted); Webster’s Third New International Dictionary, at 1936 (\"to hold (as a person) back from some action, procedure, or course: prevent from doing something\"). We have suggested in another context that \"restrain\" sometimes has a \"broad meaning\" that refers to judicial orders that \"inhibit\" particular actions, and at other times it has a \"narrower meaning\" that includes \"orders that stop (or perhaps compel)\" such acts. Direct Marketing Assn. v. Brohl, 575 U. S. 1, 12–13 (2015) (emphasis deleted). The object of the verbs \"enjoin or restrain\" is the \"operation of \" certain provisions of federal immigration law. See §§1221–1232. The \"operation of \" (a thing) means the functioning of or working of (that thing). Random House Dictionary of the English Language 1357 (2d ed. 1987) (\"an act or instance, process, or manner of functioning or operating\"); Webster’s Third New International Dictionary, at 1581 (\"method or manner of functioning\"). The way in which laws ordinarily \"work\" or \"function\" is through the actions of officials or other persons who implement them. This is certainly true of the statutes to which §1252(f )(1) refers—i.e., the provisions of part IV of subchapter II of the Immigration and Nationality Act. Those provisions charge the Federal Government with the implementation and enforcement of the immigration laws governing the inspection, apprehension, examination, and removal of aliens. See §§1221–1232. Accordingly, the \"operation of \" the relevant statutes is best understood to refer to the Government’s efforts to enforce or implement them. As the Government put it at oral argument, the \"operation of the provisions\" is a reference \"not just to the statute itself but to the way that [it is] being carried out.\" Tr. of Oral Arg. 11. Putting these terms together, §1252(f )(1) generally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions. 2 Section 1252(f )(1) includes one exception to this general prohibition: The lower courts retain the authority to \"enjoin or restrain the operation of \" the relevant statutory provisions \"with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.\" The Court has already commented on the meaning of this exception. In Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 481–482 (1999), we wrote that §1252(f )(1) \"prohibits federal courts from granting classwide injunctive relief \" but \"does not extend to individual cases.\" See also Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op., at 29); Nken, 556 U. S., at 431. This interpretation follows from the statutory text. In framing the exception to the general ban on injunctive relief, Congress used the phrase \"an individual alien.\" It thus employed a singular noun (\"an alien\"), modified by an adjective (\"individual\") that means \"pertaining or belonging to, or characteristic, of one single person.\" Black’s Law Dictionary, at 783. Therefore, §1252(f )(1) does not preclude a court from entering injunctive relief on behalf of a particular alien (so long as \"proceedings\" against the alien have been \"initiated\"), but injunctive relief on behalf of an entire class of aliens is not allowed because it is not limited to remedying the unlawful \"application\" of the relevant statutes to \"an individual alien.\" 3 On this interpretation of §1252(f )(1), the injunctions entered by the District Courts in these cases were barred. The respondents in both cases were detained pursuant to §1231(a)(6), and no one disputes that §1231(a)(6) is among the provisions the \"operation\" of which cannot be \"enjoined or restrained\" under §1252(f )(1). Both District Courts entered injunctions requiring the Government to provide bond hearings not only for respondents but also for all other class members.1 Those orders \"enjoin or restrain the operation\" of §1231(a)(6) because they require officials to take actions that (in the Government’s view) are not required by §1231(a)(6) and to refrain from actions that (again in the Government’s view) are allowed by §1231(a)(6). Those injunctions thus interfere with the Government’s efforts to operate §1231(a)(6), and the injunctions do not fall within the exception for individualized relief because the injunctions were entered on behalf of entire classes of aliens.2 B Respondents advance two counter-arguments, but both fail. 1 Respondents first contend that \"the operation\" of the covered immigration provisions means the operation of those provisions \"as properly interpreted\" and that what §1252(f )(1) bars are class-wide injunctions that prohibit the Government from doing what the statute allows or commands. Brief for Respondents 49 (emphasis added). We do not think that this is the most natural interpretation of the term \"operation,\" since it is very common to refer to the \"unlawful\" or \"improper\" operation of whatever it is that is being operated. See, e.g., Brendlin v. California, 551 U. S. 249, 253 (2007) (\"unlawful operation of the car\"); Kansas v. Colorado, 533 U. S. 1, 7 (2001) (\"improper operation\" of \"drainage ditches\"); Jeffers v. United States, 432 U. S. 137, 149, n. 14 (1977) (plurality opinion) (\"unlawful operation of motor carriers\"); Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 424 (1911) (\"unlawful operation of a railway\"); United States v. Medford, 661 F. 3d 746, 747 (CA4 2011) (\"unlawful operation of video poker machines\"); In re Dillon, 138 Fed. Appx. 609, 611 (CA5 2005) (\"unlawful operation of public water utilities\"); Cadillac/Oldsmobile/Nissan Center, Inc. v. General Motors Corp., 391 F. 3d 304, 311 (CA1 2004) (\"unlawful operation of [auto dealership]\"); Ickes v. FAA, 299 F. 3d 260, 265–266 (CA3 2002) (per curiam) (\"unlawful operation of [airplane]\"); Williams v. Panetta, 70 F. 3d 110, 1995 WL 686128, *1 (CA1 1995) (per curiam) (\"unlawful operation of a ‘megawatt’ CB radio\"); Cox Cable Tucson, Inc. v. Ladd, 795 F. 2d 1479, 1485 (CA9 1986) (\"unlawful operation of its CATV cable systems\" (internal quotation marks omitted)). If cars, trucks, railroads, water utilities, drainage ditches, auto dealerships, planes, radios, video poker machines, cable TV systems, and many other things can be unlawfully or improperly operated, it is not apparent why the same cannot be said of a statute. Thus, the ordinary meaning of the language of §1252(f )(1) weighs against respondents’ interpretation.3 Apart from ordinary meaning, the statutory context provides three additional reasons to reject respondents’ reading. First, respondents’ interpretation, which makes the reach of §1252(f )(1) depend on the nature of the claim in question, clashes with §1252(f )(1)’s prefatory clause, which states that the bar applies \"[r]egardless of the nature of the action or claim.\" See also Nielsen v. Preap, 586 U. S. ___, ___ (2019) (slip op., at 4) (THOMAS, J., concurring in part and concurring in judgment). Second, respondents’ interpretation would limit §1252(f )(1)’s restriction to a most unlikely set of claims. With perhaps a few small exceptions, the only claims to which §1252(f )(1)’s prohibition would apply are constitutional claims. But it would be most unusual for Congress to disfavor constitutional claims in this way. Cf. Webster v. Doe, 486 U. S. 592, 603 (1988) (requiring \"clear\" indication of congressional intent to \"preclude judicial review of constitutional claims\"). And if Congress had wanted to target just constitutional claims, it could have surely made the point more directly. The suggestion that Congress sought to achieve that goal by using the term \"operation\" is farfetched. Third, respondents’ interpretation would make a court’s jurisdiction to entertain a request for class-wide injunctive relief dependent upon the merits of the claim. Under respondents’ reading, if a complaint sought class-wide relief on the ground that the Government was misinterpreting and misapplying a covered statutory provision, the court would proceed to adjudicate the merits of that claim and might even hold a trial. But if the court ultimately rejected the claim on the merits, that holding would mean that the court never had jurisdiction to grant that request for relief.5 For all these reasons, respondents’ interpretation of \"operation\" must be rejected. 2 Respondents next argue that §1252(f )(1) allows classwide relief so long as all the class members are \"individuals who already face the enforcement action.\" Brief for Respondents 55 (emphasis added). But §1252(f )(1) refers to \"an individual,\" not \"individuals,\" and as noted, we have stated on more than one occasion that it bars class-wide injunctive relief. See American-Arab Anti-Discrimination Comm., 525 U. S., at 481; Jennings, 583 U. S., at ___ (slip op., at 29); Nken, 556 U. S., at 431. Respondents dispute the correctness of these statements and point out that a nearby provision, §1252(e)(1)(B), expressly bars the certification of \"a class under Rule 23 of the Federal Rules of Civil Procedure.\" Because §1252(f )(1) lacks any express reference to class actions, respondents infer that no preclusion of class-wide relief was intended. We are reluctant to give much weight to this negative inference. It is possible that §1252(f )(1) simply uses different language to bar class-wide injunctive relief and extends no further. But if the provision is not read that way, then the most plausible reading is not that it allows class-wide relief but rather that it permits injunctive relief only \"with respect to the application of [a covered provision] to an individual alien against whom proceedings under such part have been initiated.\" §1252(f )(1) (emphasis added). A literal reading of that language could rule out efforts to obtain any injunctive relief that applies to multiple named plaintiffs (or perhaps even rule out injunctive relief in a lawsuit brought by multiple named plaintiffs). The Government does not advocate that we adopt such an interpretation, see Reply Brief 11, and we have no occasion to do so in these cases. It is sufficient to hold that the classwide injunctive relief awarded in these cases was unlawful. The judgments of the Court of Appeals are reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered."},
{"docket_number": "21-147", "syllabus": "Respondent Robert Boule owns a bed-and-breakfast—the Smuggler’s Inn—in Blaine, Washington. The inn abuts the international border between Canada and the United States. Boule at times helped federal agents identify and apprehend persons engaged in unlawful cross-border activity on or near his property. But Boule also would provide transportation and lodging to illegal border crossers. Often, Boule would agree to help illegal border crossers enter or exit the United States, only to later call federal agents to report the unlawful activity. In 2014, Boule informed petitioner Erik Egbert, a U. S. Border Patrol agent, that a Turkish national, arriving in Seattle by way of New York, had scheduled transportation to Smuggler’s Inn. When Agent Egbert observed one of Boule’s vehicles returning to the inn, he suspected that the Turkish national was a passenger and followed the vehicle to the inn. On Boule’s account, Boule asked Egbert to leave, but Egbert refused, became violent, and threw Boule first against the vehicle and then to the ground. Egbert then checked the immigration paperwork for Boule’s guest and left after finding everything in order. The Turkish guest unlawfully entered Canada later that evening. Boule filed a grievance with Agent Egbert’s supervisors and an administrative claim with Border Patrol pursuant to the Federal Tort Claims Act (FTCA). Egbert allegedly retaliated against Boule by reporting Boule’s \"SMUGLER\" license plate to the Washington Department of Licensing for referencing illegal activity, and by contacting the Internal Revenue Service and prompting an audit of Boule’s tax returns. Boule’s FTCA claim was ultimately denied, and Border Patrol took no action against Egbert for his use of force or alleged acts of retaliation. Boule then sued Egbert in Federal District Court, alleging a Fourth Amendment violation for excessive use of force and a First Amendment violation for unlawful retaliation. Invoking Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, Boule asked the District Court to recognize a damages action for each alleged constitutional violation. The District Court declined to extend Bivens as requested, but the Court of Appeals reversed. Held: Bivens does not extend to create causes of action for Boule’s Fourth Amendment excessive-force claim and First Amendment retaliation claim. Pp. 5–17. (a) In Bivens, the Court held that it had authority to create a damages action against federal agents for violating the plaintiff’s Fourth Amendment rights. Over the next decade, the Court also fashioned new causes of action under the Fifth Amendment, see Davis v. Passman, 442 U. S. 228, and the Eighth Amendment, see Carlson v. Green, 446 U. S. 14. Since then, however, the Court has come \"to appreciate more fully the tension between\" judicially created causes of action and \"the Constitution’s separation of legislative and judicial power,\" Hernández v. Mesa, 589 U. S. ___, ___, and has declined 11 times to imply a similar cause of action for other alleged constitutional violations, see, e.g., Chappell v. Wallace, 462 U. S. 296; Bush v. Lucas, 462 U. S. 367. Rather than dispense with Bivens, the Court now emphasizes that recognizing a Bivens cause of action is \"a disfavored judicial activity.\" Ziglar v. Abbasi, 582 U. S. ___, ___. The analysis of a proposed Bivens claim proceeds in two steps: A court asks first whether the case presents \"a new Bivens context\"—i.e., is it \"meaningfully different from the three cases in which the Court has implied a damages action,\" Ziglar, 582 U. S., at ___, and, second, even if so, do \"special factors\" indicate that the Judiciary is at least arguably less equipped than Congress to \"weigh the costs and benefits of allowing a damages action to proceed.\" Id., at ___. This two-step inquiry often resolves to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy. Further, under the Court’s precedents, a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, \"an alternative remedial structure.\" Ziglar, 582 U. S., at ___. Pp. 5–8. (b) The Court of Appeals conceded that Boule’s Fourth Amendment claim presented a new Bivens context, but its conclusion that there was no reason to hesitate before recognizing a cause of action against Agent Egbert was incorrect for two independent reasons. Pp. 9–13. (1) First, the \"risk of undermining border security provides reason to hesitate before extending Bivens into this field.\" Hernández, 589 U. S., at ___. In Hernández, the Court declined to create a damages remedy for an excessive-force claim against a Border Patrol agent because \"regulating the conduct of agents at the border unquestionably has national security implications.\" Id., at ___. That reasoning applies with full force here. The Court of Appeals disagreed because it viewed Boule’s Fourth Amendment claim as akin to a \"conventional\" excessive-force claim, as in Bivens, and less like the cross-border shooting in Hernández. But that does not bear on the relevant point: Permitting suit against a Border Patrol agent presents national security concerns that foreclose Bivens relief. Further, the Court of Appeals’ analysis betrays the pitfalls of applying the special-factors analysis at too granular a level. A court should not inquire whether Bivens relief is appropriate in light of the balance of circumstances in the \"particular case.\" United States v. Stanley, 483 U. S. 669, 683. Rather, it should ask \"[m]ore broadly\" whether there is any reason to think that \"judicial intrusion\" into a given field might be \"harmful\" or \"inappropriate,\" id., at 681. The proper inquiry here is whether a court is competent to authorize a damages action not just against Agent Egbert, but against Border Patrol agents generally. The answer is no. Pp. 9–12. (2) Second, Congress has provided alternative remedies for aggrieved parties in Boule’s position that independently foreclose a Bivens action here. By regulation, Border Patrol must investigate \"[a]lleged violations\" and accept grievances from \"[a]ny persons.\" 8 CFR §§287.10(a)–(b). Boule claims that this regulatory grievance procedure was inadequate, but this Court has never held that a Bivens alternative must afford rights such as judicial review of an adverse determination. Bivens \"is concerned solely with deterring the unconstitutional acts of individual officers.\" Correctional Services Corp. v. Malesko, 534 U. S. 61, 71. And, regardless, the question whether a given remedy is adequate is a legislative determination. As in Hernández, this Court has no warrant to doubt that the consideration of Boule’s grievance secured adequate deterrence and afforded Boule an alternative remedy. See 589 U. S., at ___. Pp. 12–13. (c) There is no Bivens cause of action for Boule’s First Amendment retaliation claim. That claim presents a new Bivens context, and there are many reasons to think that Congress is better suited to authorize a damages remedy. Extending Bivens to alleged First Amendment violations would pose an acute \"risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.\" Anderson v. Creighton, 483 U. S. 635, 638. In light of these costs, \"Congress is in a better position to decide whether or not the public interest would be served\" by imposing a damages action. Bush, 462 U. S., at 389. The Court of Appeals’ reasons for extending Bivens in this context—that retaliation claims are \"well-established\" and that Boule alleges that Agent Egbert \"was not carrying out official duties\" when the retaliation occurred—lack merit. Also lacking merit is Boule’s claim that this Court identified a Bivens cause of action under allegedly similar circumstances in Passman. Even assuming factual parallels, Passman carries little weight because it predates the Court’s current approach to implied causes of action. A plaintiff cannot justify a Bivens extension based on \"parallel circumstances\" with Bivens, Passman, or Carlson—the three cases in which the Court has implied a damages action—unless the plaintiff also satisfies the prevailing \"analytic framework\" prescribed by the last four decades of intervening case law. Ziglar, 582 U. S., at ___–___. Pp. 13–16. 998 F. 3d 370, reversed.", "opinion": "In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), this Court authorized a damages action against federal officials for alleged violations of the Fourth Amendment. Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations. See Chappell v. Wallace, 462 U. S. 296 (1983); Bush v. Lucas, 462 U. S. 367 (1983); United States v. Stanley, 483 U. S. 669 (1987); Schweiker v. Chilicky, 487 U. S. 412 (1988); FDIC v. Meyer, 510 U. S. 471 (1994); Correctional Services Corp. v. Malesko, 534 U. S. 61 (2001); Wilkie v. Robbins, 551 U. S. 537 (2007); Hui v. Castaneda, 559 U. S. 799 (2010); Minneci v. Pollard, 565 U. S. 118 (2012); Ziglar v. Abbasi, 582 U. S. ___ (2017); Hernández v. Mesa, 589 U. S. ___ (2020). Nevertheless, the Court of Appeals permitted not one, but two constitutional damages actions to proceed against a U. S. Border Patrol agent: a Fourth Amendment excessive-force claim and a First Amendment retaliation claim. Because our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts, we reverse. I Blaine, Washington, is the last town in the United States along U. S. Interstate Highway 5 before reaching the Canadian border. Respondent Robert Boule is a longtime Blaine resident. The rear of his property abuts the Canadian border at \"0 Avenue,\" a Canadian street. Boule’s property line actually extends five feet into Canada. Several years ago, Boule placed a line of small stones on his property to mark the international boundary. As shown below, any person could easily enter the United States or Canada through or near Boule’s property. See App. 100. Boule markets his home as a bed-and-breakfast aptly named \"Smuggler’s Inn.\" The area surrounding the Inn \"is a hotspot for cross-border smuggling of people, drugs, illicit money, and items of significance to criminal organizations.\" Id., at 91. \"On numerous occasions,\" U. S. Border Patrol agents \"have observed persons come south across the border and walk into Smuggler’s Inn through the back door.\" Id., at 101. Federal agents also have seized from the Inn shipments of cocaine, methamphetamine, ecstasy, and other narcotics. For a time, Boule served as a confidential informant who would help federal agents identify and apprehend persons engaged in unlawful cross-border activity on or near his property. Boule claims that the Government has paid him upwards of $60,000 for his services. Ever the entrepreneur, Boule saw his relationship with Border Patrol as a business opportunity. Boule would host persons who unlawfully entered the United States as \"guests\" at the Inn and offer to drive them to Seattle or elsewhere. He also would pick up Canada-bound guests throughout the State and drive them north to his property along the border. Either way, Boule would charge $100– $150 per hour for his shuttle service and require guests to pay for a night of lodging even if they never intended to stay at the Inn. Meanwhile, Boule would inform federal law enforcement if he was scheduled to lodge or transport persons of interest. In short order, Border Patrol agents would arrive to arrest the guests, often within a few blocks of the Inn. Boule would decline to offer his erstwhile customers a refund. In his view, this practice was \"nothing any different than [the] normal policies of any hotel/motel.\" Id., at 120.1 In light of Boule’s business model, local Border Patrol agents, including petitioner Erik Egbert, were well acquainted with Smuggler’s Inn and the criminal activity that attended it. On March 20, 2014, Boule informed Agent Egbert that a Turkish national, arriving in Seattle by way of New York, had scheduled transportation to Smuggler’s Inn later that day. Agent Egbert grew suspicious, as he could think of \"no legitimate reason a person would travel from Turkey to stay at a rundown bed-and-breakfast on the border in Blaine.\" Id., at 104. The photograph below displays the amenities for which Boule’s Turkish guest would have traveled more than 7,500 miles. See id., at 102. Later that afternoon, Agent Egbert observed one of Boule’s vehicles—a black SUV with the license plate \"SMUGLER\"—returning to the Inn. Agent Egbert suspected that Boule’s Turkish guest was a passenger and followed the SUV into the driveway so he could check the guest’s immigration status. On Boule’s account, the situation escalated from there. Boule instructed Agent Egbert to leave his property, but Agent Egbert declined. Instead, Boule claims, Agent Egbert lifted him off the ground and threw him against the SUV. After Boule collected himself, Agent Egbert allegedly threw him to the ground. Agent Egbert then checked the guest’s immigration paperwork, concluded that everything was in order, and left. Later that evening, Boule’s Turkish guest unlawfully entered Canada from Smuggler’s Inn. Boule lodged a grievance with Agent Egbert’s supervisors, alleging that Agent Egbert had used excessive force and caused him physical injury. Boule also filed an administrative claim with Border Patrol pursuant to the Federal Tort Claims Act (FTCA). See 28 U. S. C. §2675(a). According to Boule, Agent Egbert retaliated against him while those claims were pending by reporting Boule’s \"SMUGLER\" license plate to the Washington Department of Licensing for referencing illegal conduct, and by contacting the Internal Revenue Service and prompting an audit of Boule’s tax returns. Ultimately, Boule’s FTCA claim was denied and, after a year-long investigation, Border Patrol took no action against Agent Egbert for his alleged use of force or acts of retaliation. Thereafter, Agent Egbert continued to serve as an active-duty Border Patrol agent. In January 2017, Boule sued Agent Egbert in his individual capacity in Federal District Court, alleging a Fourth Amendment violation for excessive use of force and a First Amendment violation for unlawful retaliation. Boule invoked Bivens and asked the District Court to recognize a damages action for each alleged constitutional violation. The District Court declined to extend a Bivens remedy to Boule’s claims and entered judgment for Agent Egbert. The Court of Appeals reversed. See 998 F. 3d 370, 385 (CA9 2021). Twelve judges dissented from the denial of rehearing en banc. See id., at 373 (Bumatay, J., dissenting); id., at 384 (Owens, J., dissenting); ibid. (Bress, J., dissenting). We granted certiorari. 595 U. S. ___ (2021). II In Bivens, the Court held that it had authority to create \"a cause of action under the Fourth Amendment\" against federal agents who allegedly manacled the plaintiff and threatened his family while arresting him for narcotics violations. 403 U. S., at 397. Although \"the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages,\" id., at 396, the Court \"held that it could authorize a remedy under general principles of federal jurisdiction,\" Ziglar, 582 U. S., at ___ (slip op., at 7) (citing Bivens, 403 U. S., at 392). Over the following decade, the Court twice again fashioned new causes of action under the Constitution—first, for a former congressional staffer’s Fifth Amendment sex-discrimination claim, see Davis v. Passman, 442 U. S. 228 (1979); and second, for a federal prisoner’s inadequate-care claim under the Eighth Amendment, see Carlson v. Green, 446 U. S. 14 (1980). Since these cases, the Court has not implied additional causes of action under the Constitution. Now long past \"the heady days in which this Court assumed common-law powers to create causes of action,\" Malesko, 534 U. S., at 75 (Scalia, J., concurring), we have come \"to appreciate more fully the tension between\" judicially created causes of action and \"the Constitution’s separation of legislative and judicial power,\" Hernández, 589 U. S., at ___ (slip op., at 5). At bottom, creating a cause of action is a legislative endeavor. Courts engaged in that unenviable task must evaluate a \"range of policy considerations . . . at least as broad as the range . . . a legislature would consider.\" Bivens, 403 U. S., at 407 (Harlan, J., concurring in judgment); see also post, at 2 (GORSUCH, J., concurring in judgment). Those factors include \"economic and governmental concerns,\" \"administrative costs,\" and the \"impact on governmental operations systemwide.\" Ziglar, 582 U. S., at ___, ___ (slip op., at 10, 13). Unsurprisingly, Congress is \"far more competent than the Judiciary\" to weigh such policy considerations. Schweiker, 487 U. S., at 423. And the Judiciary’s authority to do so at all is, at best, uncertain. See, e.g., Hernández, 589 U. S., at ___ (slip op., at 6). Nonetheless, rather than dispense with Bivens altogether, we have emphasized that recognizing a cause of action under Bivens is \"a disfavored judicial activity.\" Ziglar, 582 U. S., at ___ (slip op., at 11) (internal quotation marks omitted); Hernández, 589 U. S., at ___ (slip op., at 7) (internal quotation marks omitted). When asked to imply a Bivens action, \"our watchword is caution.\" Id., at ___ (slip op., at 6). \"[I]f there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy[,] the courts must refrain from creating [it].\" Ziglar, 582 U. S., at ___ (slip op., at 13). \"[E]ven a single sound reason to defer to Congress\" is enough to require a court to refrain from creating such a remedy. Nestlé USA, Inc. v. Doe, 593 U. S. ___, ___ (2021) (plurality opinion) (slip op., at 6). Put another way, \"the most important question is who should decide whether to provide for a damages remedy, Congress or the courts?\" Hernández, 589 U. S., at ___–___ (slip op., at 19–20) (internal quotation marks omitted). If there is a rational reason to think that the answer is \"Congress\"—as it will be in most every case, see Ziglar, 582 U. S., at ___ (slip op., at 12)—no Bivens action may lie. Our cases instruct that, absent utmost deference to Congress’ preeminent authority in this area, the courts \"arrogat[e] legislative power.\" Hernández, 589 U. S., at ___ (slip op., at 5). To inform a court’s analysis of a proposed Bivens claim, our cases have framed the inquiry as proceeding in two steps. See Hernández, 589 U. S., at ___ (slip op., at 7). First, we ask whether the case presents \"a new Bivens context\"—i.e., is it \"meaningful[ly]\" different from the three cases in which the Court has implied a damages action. Ziglar, 582 U. S., at ___ (slip op., at 16). Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are \"special factors\" indicating that the Judiciary is at least arguably less equipped than Congress to \"weigh the costs and benefits of allowing a damages action to proceed.\" Ziglar, 582 U. S., at ___ (slip op., at 12) (internal quotation marks omitted). If there is even a single \"reason to pause before applying Bivens in a new context,\" a court may not recognize a Bivens remedy. Hernández, 589 U. S., at ___ (slip op., at 7). While our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy. For example, we have explained that a new context arises when there are \"potential special factors that previous Bivens cases did not consider.\" Ziglar, 582 U. S., at ___ (slip op., at 16). And we have identified several examples of new contexts—e.g., a case that involves a \"new category of defendants,\" Malesko, 534 U. S., at 68; see also Ziglar, 582 U. S., at ___ (slip op., at 11)—largely because they represent situations in which a court is not undoubtedly better positioned than Congress to create a damages action. We have never offered an \"exhaustive\" accounting of such scenarios, however, because no court could forecast every factor that might \"counse[l] hesitation.\" Id., at ___ (slip op., at 16). Even in a particular case, a court likely cannot predict the \"systemwide\" consequences of recognizing a cause of action under Bivens. Ziglar, 582 U. S., at ___ (slip op., at 13). That uncertainty alone is a special factor that forecloses relief. See Hernández v. Mesa, 885 F. 3d 811, 818 (CA5 2018) (en banc) (\"The newness of this ‘new context’ should alone require dismissal\"). Finally, our cases hold that a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, \"an alternative remedial structure.\" Ziglar, 582 U. S., at ___ (slip op., at 14); see also Schweicker, 487 U. S., at 425. If there are alternative remedial structures in place, \"that alone,\" like any special factor, is reason enough to \"limit the power of the Judiciary to infer a new Bivens cause of action.\" Ziglar, 582 U. S., at ___ (slip op., at 14).2 Importantly, the relevant question is not whether a Bivens action would \"disrup[t]\" a remedial scheme, Schweicker, 487 U. S., at 426, or whether the court \"should provide for a wrong that would otherwise go unredressed,\" Bush, 462 U. S., at 388. Nor does it matter that \"existing remedies do not provide complete relief.\" Ibid. Rather, the court must ask only whether it, rather than the political branches, is better equipped to decide whether existing remedies \"should be augmented by the creation of a new judicial remedy.\" Ibid; see also id., at 380 (\"the question [is] who should decide\"). III Applying the foregoing principles, the Court of Appeals plainly erred when it created causes of action for Boule’s Fourth Amendment excessive-force claim and First Amendment retaliation claim. A The Court of Appeals conceded that Boule’s Fourth Amendment claim presented a new context for Bivens purposes, yet it concluded there was no reason to hesitate before recognizing a cause of action against Agent Egbert. See 998 F. 3d, at 387. That conclusion was incorrect for two independent reasons: Congress is better positioned to create remedies in the border-security context, and the Government already has provided alternative remedies that protect plaintiffs like Boule. We address each in turn. 1 In Hernández, we declined to create a damages remedy for an excessive-force claim against a Border Patrol agent who shot and killed a 15-year-old Mexican national across the border in Mexico. See 589 U. S., at ___–___ (slip op., at 1–2). We did not recognize a Bivens action there because \"regulating the conduct of agents at the border unquestionably has national security implications,\" and the \"risk of undermining border security provides reason to hesitate before extending Bivens into this field.\" Hernández, 589 U. S., at ___ (slip op., at 14). This reasoning applies here with full force. During the alleged altercation with Boule, Agent Egbert was carrying out Border Patrol’s mandate to \"interdic[t] persons attempting to illegally enter or exit the United States or goods being illegally imported into or exported from the United States.\" 6 U. S. C. §211(e)(3)(A). Because \"[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention,\" Haig v. Agee, 453 U. S. 280, 292 (1981), we reaffirm that a Bivens cause of action may not lie where, as here, national security is at issue. The Court of Appeals thought otherwise. In its view, Boule’s Fourth Amendment claim is \"conventional,\" 998 F. 3d, at 387; see also post, at 8, 12 (SOTOMAYOR, J., concurring in judgment in part and dissenting in part) (same), and, though it arises in a new context, this Court has not \"‘cast doubt’\" on extending Bivens within the \"‘common and recurrent sphere of law enforcement’\" in which it arose, 998 F. 3d, at 389 (quoting Ziglar, 582 U. S., at ___ (slip op., at 11)). While Bivens and this case do involve similar allegations of excessive force and thus arguably present \"almost parallel circumstances\" or a similar \"mechanism of injury,\" Ziglar, 582 U. S., at ___ (slip op., at 15), these superficial similarities are not enough to support the judicial creation of a cause of action. The special-factors inquiry—which Bivens never meaningfully undertook, see Stanley, 483 U. S., at 678—shows here, no less than in Hernández, that the Judiciary is not undoubtedly better positioned than Congress to authorize a damages action in this national-security context. That this case does not involve a cross-border shooting, as in Hernández, but rather a more \"conventional\" excessive-force claim, as in Bivens, does not bear on the relevant point. Either way, the Judiciary is comparatively ill suited to decide whether a damages remedy against any Border Patrol agent is appropriate. The Court of Appeals downplayed the national-security risk from imposing Bivens liability because Agent Egbert was not \"literally ‘at the border,’\" and Boule’s guest already had cleared customs in New York. 998 F. 3d, at 388; see also post, at 11–12, 18 (opinion of SOTOMAYOR, J.) (same). The court also found that Boule had a weightier interest in Bivens relief than the parents of the deceased Mexican teenager in Hernández, because Boule \"is a United States citizen, complaining of harm suffered on his own property in the United States.\" 998 F. 3d, at 388; see also post, at 12, 18 (opinion of SOTOMAYOR, J.) (same). Finding that \"any costs imposed by allowing a Bivens claim to proceed are outweighed by compelling interests in favor of protecting United States citizens on their own property in the United States,\" the court extended Bivens to Boule’s case. 998 F. 3d, at 389. This analysis is deeply flawed. The Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action. A court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to \"weigh the costs and benefits of allowing a damages action to proceed.\" Ziglar, 582 U. S., at ___ (slip op., at 12). Thus, a court should not inquire, as the Court of Appeals did here, whether Bivens relief is appropriate in light of the balance of circumstances in the \"particular case.\" Stanley, 483 U. S., at 683. A court inevitably will \"impai[r]\" governmental interests, and thereby frustrate Congress’ policymaking role, if it applies the \"‘special factors’ analysis\" at such a narrow \"leve[l] of generality.\" Id., at 681. Rather, under the proper approach, a court must ask \"[m]ore broadly\" if there is any reason to think that \"judicial intrusion\" into a given field might be \"harmful\" or \"inappropriate.\" Ibid. If so, or even if there is the \"potential\" for such consequences, a court cannot afford a plaintiff a Bivens remedy. Ziglar, 582 U. S., at ___, ___ (slip op., at 16, 25) (emphasis added). As in Hernández, then, we ask here whether a court is competent to authorize a damages action not just against Agent Egbert but against Border Patrol agents generally. The answer, plainly, is no. See Hernández, 589 U. S., at ___ (slip op., at 14) (refusing to extend Bivens into the \"field\" of \"border security\"). The Court of Appeals’ analysis betrays the pitfalls of applying the special-factors analysis at too granular a level. The court rested on three irrelevant distinctions from Hernández. First, Agent Egbert was several feet from (rather than straddling) the border, but cross-border security is obviously implicated in either event. Second, Boule’s guest arrived in Seattle from New York rather than abroad, but an alien’s port of entry does not make him less likely to be a national-security threat. And third, Agent Egbert investigated immigration violations on our side of the border, not Canada’s, but immigration investigations in this country are perhaps more likely to impact the national security of the United States. In short, the Court of Appeals offered no plausible basis to permit a Fourth Amendment Bivens claim against Agent Egbert to proceed. 2 Second, Congress has provided alternative remedies for aggrieved parties in Boule’s position that independently foreclose a Bivens action here. In Hernández, we declined to authorize a Bivens remedy, in part, because the Executive Branch already had investigated alleged misconduct by the defendant Border Patrol agent. See 589 U. S., at ___– ___, ___ (slip op., at 9–10, 14). In Malesko, we explained that Bivens relief was unavailable because federal prisoners could, among other options, file grievances through an \"Administrative Remedy Program.\" 534 U. S., at 74. Both kinds of remedies are available here. The U. S. Border Patrol is statutorily obligated to \"control, direc[t], and supervis[e] . . . all employees.\" 8 U. S. C. §1103(a)(2). And, by regulation, Border Patrol must investigate \"[a]lleged violations of the standards for enforcement activities\" and accept grievances from \"[a]ny persons wishing to lodge a complaint.\" 8 CFR §§287.10(a)–(b). As noted, Boule took advantage of this grievance procedure, prompting a year-long internal investigation into Agent Egbert’s conduct. See supra, at 4–5. Boule nonetheless contends that Border Patrol’s grievance process is inadequate because he is not entitled to participate and has no right to judicial review of an adverse determination.3 But we have never held that a Bivens alternative must afford rights to participation or appeal. That is so because Bivens \"is concerned solely with deterring the unconstitutional acts of individual officers\"—i.e., the focus is whether the Government has put in place safeguards to \"preven[t]\" constitutional violations \"from recurring.\" Malesko, 534 U. S., at 71, 74; see also Meyer, 510 U. S., at 485. And, again, the question whether a given remedy is adequate is a legislative determination that must be left to Congress, not the federal courts. So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy. That is true even if a court independently concludes that the Government’s procedures are \"not as effective as an individual damages remedy.\" Bush, 462 U. S., at 372. Thus here, as in Hernández, we have no warrant to doubt that the consideration of Boule’s grievance against Agent Egbert secured adequate deterrence and afforded Boule an alternative remedy. See 589 U. S., at ___ (slip op., at 10). B We also conclude that there is no Bivens cause of action for Boule’s First Amendment retaliation claim. While we have assumed that such a damages action might be available, see, e.g., Hartman v. Moore, 547 U. S. 250, 252 (2006), \"[w]e have never held that Bivens extends to First Amendment claims,\" Reichle v. Howards, 566 U. S. 658, 663, n. 4 (2012). Because a new context arises when there is a new \"constitutional right at issue,\" Ziglar, 582 U. S., at ___ (slip op., at 16), the Court of Appeals correctly held that Boule’s First Amendment claim presents a new Bivens context. See 998 F. 3d, at 390. Now presented with the question whether to extend Bivens to this context, we hold that there is no Bivens action for First Amendment retaliation. There are many reasons to think that Congress, not the courts, is better suited to authorize such a damages remedy. Recognizing any new Bivens action \"entail[s] substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.\" Anderson v. Creighton, 483 U. S. 635, 638 (1987). Extending Bivens to alleged First Amendment violations would pose an acute risk of increasing such costs. A plaintiff can turn practically any adverse action into grounds for a retaliation claim. And, \"[b]ecause an official’s state of mind is easy to allege and hard to disprove, insubstantial claims that turn on [retaliatory] intent may be less amenable to summary disposition.\" Crawford-El v. Britton, 523 U. S. 574, 584–585 (1998) (internal quotation marks omitted). Even a frivolous retaliation claim \"threaten[s] to set off broad-ranging discovery in which there is often no clear end to the relevant evidence.\" Nieves v. Bartlett, 587 U. S. ___, ___ (2019) (slip op., at 11) (internal quotation marks omitted). \"[U]ndoubtedly,\" then, the \"prospect of personal liability\" under the First Amendment would lead \"to new difficulties and expense.\" Schweiker, 487 U. S., at 425. Federal employees \"face[d with] the added risk of personal liability for decisions that they believe to be a correct response to improper [activity] would be deterred from\" carrying out their duties. Bush, 462 U. S., at 389. We are therefore \"convinced\" that, in light of these costs, \"Congress is in a better position to decide whether or not the public interest would be served\" by imposing a damages action. Id., at 390. The Court of Appeals nonetheless extended Bivens to the First Amendment because, in its view, retaliation claims are \"well-established,\" and Boule alleges that Agent Egbert \"was not carrying out official duties\" when he retaliated against him. 998 F. 3d, at 391. Neither rationale has merit. First, just because plaintiffs often plead unlawful retaliation to establish a First Amendment violation is not a reason to afford them a cause of action to sue federal officers for money damages. If anything, that retaliation claims are common, and therefore more likely to impose \"a significant expansion of Government liability,\" Meyer, 510 U. S., at 486, counsels against permitting Bivens relief. Second, the Court of Appeals’ scope-of-duty observation does not meaningfully limit the number of potential Bivens claims or otherwise undermine the reasons for hesitation stated above. It is easy to allege that federal employees acted beyond the scope of their authority when claiming a constitutional violation. And, regardless, granting Bivens relief because a federal agent supposedly did not act pursuant to his law-enforcement mission \"misses the point.\" Hernández, 589 U. S., at ___ (slip op., at 14). \"The question is not whether national security,\" or some other governmental interest, actually \"requires [the defendant’s] conduct.\" Ibid. Instead, we \"ask whether the Judiciary should alter the framework established by the political branches for addressing\" any such conduct that allegedly violates the Constitution. Ibid. With respect to that question, the foregoing discussion shows that the Judiciary is ill equipped to alter that framework generally, and especially so when it comes to First Amendment claims. Boule responds that any hesitation is unwarranted because this Court in Passman already identified a Bivens cause of action under allegedly similar circumstances. There, the Court permitted a congressional staffer to sue a congressman for sex discrimination under the Fifth Amendment. See 442 U. S., at 231. In Boule’s view, Passman, like this case, permitted a damages action to proceed even though it required the factfinder to probe a federal official’s motives for taking an adverse action against the plaintiff. Even assuming the factual parallels are as close as Boule claims, Passman carries little weight because it predates our current approach to implied causes of action and diverges from the prevailing framework in three important ways. First, the Passman Court concluded that a Bivens action must be available if there is \"no effective means other than the judiciary to vindicate\" the purported Fifth Amendment right. 442 U. S., at 243; see also Carlson, 446 U. S., at 18–19 (Congress can foreclose Bivens relief by \"provid[ing] an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective\"). Since then, however, we have explained that the absence of relief \"does not by any means necessarily imply that courts should award money damages.\" Schweiker, 487 U. S., at 421. Second, Passman indicated that a damages remedy is appropriate unless Congress \"explicit[ly]\" declares that a claimant \"may not recover money damages.\" 442 U. S., at 246–247 (internal quotation marks omitted; emphasis deleted). Now, though, we defer to \"congressional inaction\" if \"the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms.\" Schweiker, 487 U. S., at 423; see also Ziglar, 582 U. S., at ___ (slip op., at 14). Third, when assessing the \"special factors,\" Passman asked whether a court is competent to calculate damages \"without difficult questions of valuation or causation.\" 442 U. S., at 245. But today, we do not ask whether a court can determine a damages amount. Rather, we ask whether \"there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy\" at all. Ziglar, 582 U. S., at ___ (slip op., at 13). In short, as we explained in Ziglar, a plaintiff cannot justify a Bivens extension based on \"parallel circumstances\" with Bivens, Passman, or Carlson unless he also satisfies the \"analytic framework\" prescribed by the last four decades of intervening case law. 582 U. S., at ___–___ (slip op., at 15–16). Boule has failed to do so. IV Since it was decided, Bivens has had no shortage of detractors. See, e.g., Bivens, 403 U. S., at 411 (Burger, C. J., dissenting); id., at 427 (Black, J., dissenting); id., at 430 (Blackmun, J., dissenting); Carlson, 446 U. S., at 31 (Rehnquist, J., dissenting); Malesko, 534 U. S., at 75 (Scalia, J., concurring); Hernández, 589 U. S., at ___ (THOMAS, J., concurring) (slip op., at 1); post, at 1–3 (opinion of GORSUCH, J.). And, more recently, we have indicated that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution. See Ziglar, 582 U. S., at ___ (slip op., at 11). But, to decide the case before us, we need not reconsider Bivens itself. Accordingly, we reverse the judgment of the Court of Appeals."},
{"docket_number": "19-631", "syllabus": "In response to consumer complaints, Congress passed the Telephone Consumer Protection Act of 1991 (TCPA) to prohibit, inter alia, almost all robocalls to cell phones. 47 U. S. C. §227(b)(1)(A)(iii). In 2015, Congress amended the robocall restriction, carving out a new government-debt exception that allows robocalls made solely to collect a debt owed to or guaranteed by the United States. 129 Stat. 588. The American Association of Political Consultants and three other organizations that participate in the political system filed a declaratory judgment action, claiming that §227(b)(1)(A)(iii) violated the First Amendment. The District Court determined that the robocall restriction with the government-debt exception was content-based but that it survived strict scrutiny because of the Government’s compelling interest in collecting debt. The Fourth Circuit vacated the judgment, agreeing that the robocall restriction with the government-debt exception was a content-based speech restriction, but holding that the law could not withstand strict scrutiny. The court invalidated the government-debt exception and applied traditional severability principles to sever it from the robocall restriction. Held: The judgment is affirmed. 923 F. 3d 159, affirmed. JUSTICE KAVANAUGH, joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE ALITO, concluded in Part II that the 2015 government-debt exception violates the First Amendment. Pp. 6–9. (a) The Free Speech Clause provides that government generally \"has no power to restrict expression because of its message, its ideas, its subject matter, or its content.\" Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95. Under this Court’s precedents, content-based laws are subject to strict scrutiny. See Reed v. Town of Gilbert, 576 U. S. 155, 165. Section 227(b)(1)(A)(iii)’s robocall restriction, with the government-debt exception, is content based because it favors speech made for the purpose of collecting government debt over political and other speech. Pp. 6–7. (b) The Government’s arguments for deeming the statute content-neutral are unpersuasive. First, §227(b)(1)(A)(iii) does not draw distinctions based on speakers, and even if it did, that would not \"automatically render the distinction content neutral.\" Reed, 576 U. S., at 170. Second, the law here focuses on whether the caller is speaking about a particular topic and not, as the Government contends, simply on whether the caller is engaged in a particular economic activity. See Sorrell v. IMS Health Inc., 564 U. S. 552, 563–564. Third, while \"the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,\" this law \"does not simply have an effect on speech but is directed at certain content and is aimed at particular speakers.\" Id., at 567. (c) As the Government concedes, the robocall restriction with the government-debt exception cannot satisfy strict scrutiny. The Government has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, issue advocacy, and the like. Pp. 7–9. JUSTICE KAVANAUGH, joined by THE CHIEF JUSTICE and JUSTICE ALITO, concluded in Part III that the 2015 government-debt exception is severable from the underlying 1991 robocall restriction. The TCPA is part of the Communications Act, which has contained an express severability clause since 1934. Even if that clause did not apply to the exception, the presumption of severability would still apply. See, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477. The remainder of the law is capable of functioning independently and would be fully operative as a law. Severing this relatively narrow exception to the broad robocall restriction fully cures the First Amendment unequal treatment problem and does not raise any other constitutional problems. Pp. 9–24. JUSTICE SOTOMAYOR concluded that the government-debt exception fails under intermediate scrutiny and is severable from the rest of the Act. Pp. 1–2. JUSTICE BREYER, joined by JUSTICE GINSBURG and JUSTICE KAGAN, would have upheld the government-debt exception, but given the contrary majority view, agreed that the provision is severable from the rest of the statute. Pp. 11–12. JUSTICE GORSUCH concluded that content-based restrictions on speech are subject to strict scrutiny, that the Telephone Consumer Protection Act’s rule against cellphone robocalls is a content-based restriction, and that this rule fails strict scrutiny and therefore cannot be constitutionally enforced. Pp. 1–4.", "opinion": "JUSTICE KAVANAUGH announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and JUSTICE ALITO join, and in which JUSTICE THOMAS joins as to Parts I and II. Americans passionately disagree about many things. But they are largely united in their disdain for robocalls. The Federal Government receives a staggering number of complaints about robocalls—3.7 million complaints in 2019 alone. The States likewise field a constant barrage of complaints. For nearly 30 years, the people’s representatives in Congress have been fighting back. As relevant here, the Telephone Consumer Protection Act of 1991, known as the TCPA, generally prohibits robocalls to cell phones and home phones. But a 2015 amendment to the TCPA allows robocalls that are made to collect debts owed to or guaranteed by the Federal Government, including robocalls made to collect many student loan and mortgage debts. This case concerns robocalls to cell phones. Plaintiffs in this case are political and nonprofit organizations that want to make political robocalls to cell phones. Invoking the First Amendment, they argue that the 2015 government-debt exception unconstitutionally favors debt-collection speech over political and other speech. As relief from that unconstitutional law, they urge us to invalidate the entire 1991 robocall restriction, rather than simply invalidating the 2015 government-debt exception. Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. See infra, at 6–9; post, at 1–2 (SOTOMAYOR, J., concurring in judgment); post, at 1, 3 (GORSUCH, J., concurring in judgment in part and dissenting in part). Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. See infra, at 10–25; post, at 2 (SOTOMAYOR, J., concurring in judgment); post, at 11–12 (BREYER, J., concurring in judgment with respect to severability and dissenting in part). As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed. I A In 1991, Congress passed and President George H. W. Bush signed the Telephone Consumer Protection Act. The Act responded to a torrent of vociferous consumer complaints about intrusive robocalls. A growing number of telemarketers were using equipment that could automatically dial a telephone number and deliver an artificial or prerecorded voice message. At the time, more than 300,000 solicitors called more than 18 million Americans every day. TCPA, §2, ¶¶3, 6, 105 Stat. 2394, note following 47 U. S. C. §227. Consumers were \"outraged\" and considered robocalls an invasion of privacy \"regardless of the content or the initiator of the message.\" ¶¶6, 10. A leading Senate sponsor of the TCPA captured the zeitgeist in 1991, describing robocalls as \"the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall.\" 137 Cong. Rec. 30821 (1991). In enacting the TCPA, Congress found that banning robocalls was \"the only effective means of protecting telephone consumers from this nuisance and privacy invasion.\" TCPA §2, ¶12. To that end, the TCPA imposed various restrictions on the use of automated telephone equipment. §3(a), 105 Stat. 2395. As relevant here, one restriction prohibited \"any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice\" to \"any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.\" Id., at 2395–2396 (emphasis added). That provision is codified in §227(b)(1)(A)(iii) of Title 47 of the U. S. Code. In plain English, the TCPA prohibited almost all robocalls to cell phones. Twenty-four years later, in 2015, Congress passed and President Obama signed the Bipartisan Budget Act. In addition to making other unrelated changes to the U. S. Code, that Act amended the TCPA’s restriction on robocalls to cell phones. It stated: \"(a) IN GENERAL.—Section 227(b) of the Communications Act of 1934 (47 U. S. C. 227(b)) is amended— (1) in paragraph (1)— (A) in subparagraph (A)(iii), by inserting ‘, unless such call is made solely to collect a debt owed to or guaranteed by the United States’ after ‘charged for the call.’\" 129 Stat. 588.2 In other words, Congress carved out a new government-debt exception to the general robocall restriction. The TCPA imposes tough penalties for violating the robocall restriction. Private parties can sue to recover up to $1,500 per violation or three times their actual monetary losses, which can add up quickly in a class action. §227(b)(3). States may bring civil actions against robocallers on behalf of their citizens. §227(g)(1). And the Federal Communications Commission can seek forfeiture penalties for willful or repeated violations of the statute. §503(b). B Plaintiffs in this case are the American Association of Political Consultants and three other organizations that participate in the political system. Plaintiffs and their members make calls to citizens to discuss candidates and issues, solicit donations, conduct polls, and get out the vote. Plaintiffs believe that their political outreach would be more effective and efficient if they could make robocalls to cell phones.3 But because plaintiffs are not in the business of collecting government debt, §227(b)(1)(A)(iii) prohibits them from making those robocalls. Plaintiffs filed a declaratory judgment action against the U. S. Attorney General and the FCC, claiming that §227(b)(1)(A)(iii) violated the First Amendment. The U. S. District Court for the Eastern District of North Carolina determined that the robocall restriction with the government-debt exception was a content-based speech regulation, thereby triggering strict scrutiny. But the court concluded that the law survived strict scrutiny, even with the content-based exception, because of the Government’s compelling interest in collecting debt. The U. S. Court of Appeals for the Fourth Circuit vacated the judgment. American Assn. of Political Consultants, Inc. v. FCC, 923 F. 3d 159 (2019). The Court of Appeals agreed with the District Court that the robocall restriction with the government-debt exception was a content-based speech restriction. But the court held that the law could not withstand strict scrutiny and was therefore unconstitutional. The Court of Appeals then applied traditional severability principles and concluded that the government-debt exception was severable from the underlying robocall restriction. The Court of Appeals therefore invalidated the government-debt exception and severed it from the robocall restriction. The Government petitioned for a writ of certiorari because the Court of Appeals invalidated part of a federal statute—namely, the government-debt exception. Plaintiffs supported the petition, arguing from the other direction that the Court of Appeals did not go far enough in providing relief and should have invalidated the entire 1991 robocall restriction rather than simply invalidating the 2015 government-debt exception. We granted certiorari. 589 U. S. ___ (2020). II Ratified in 1791, the First Amendment provides that Congress shall make no law \"abridging the freedom of speech.\" Above \"all else, the First Amendment means that government\" generally \"has no power to restrict expression because of its message, its ideas, its subject matter, or its content.\" Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972). The Court’s precedents allow the government to \"constitutionally impose reasonable time, place, and manner regulations\" on speech, but the precedents restrict the government from discriminating \"in the regulation of expression on the basis of the content of that expression.\" Hudgens v. NLRB, 424 U. S. 507, 520 (1976). Content-based laws are subject to strict scrutiny. See Reed v. Town of Gilbert, 576 U. S. 155, 163–164 (2015). By contrast, content-neutral laws are subject to a lower level of scrutiny. Id., at 166. Section 227(b)(1)(A)(iii) generally bars robocalls to cell phones. Since the 2015 amendment, the law has exempted robocalls to collect government debt. The initial First Amendment question is whether the robocall restriction, with the government-debt exception, is content-based. The answer is yes. As relevant here, a law is content-based if \"a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.\" Reed, 576 U. S., at 163. That description applies to a law that \"singles out specific subject matter for differential treatment.\" Id., at 169. For example, \"a law banning the use of sound trucks for political speech—and only political speech—would be a contentbased regulation, even if it imposed no limits on the political viewpoints that could be expressed.\" Ibid.; see, e.g., Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 116 (1991); Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 229–230 (1987); Widmar v. Vincent, 454 U. S. 263, 265, 276–277 (1981); Carey v. Brown, 447 U. S. 455, 459–463 (1980); Erznoznik v. Jacksonville, 422 U. S. 205, 211–212 (1975); Mosley, 408 U. S., at 95–96. Under §227(b)(1)(A)(iii), the legality of a robocall turns on whether it is \"made solely to collect a debt owed to or guaranteed by the United States.\" A robocall that says, \"Please pay your government debt\" is legal. A robocall that says, \"Please donate to our political campaign\" is illegal. That is about as content-based as it gets. Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech. The Government advances three main arguments for deeming the statute content-neutral, but none is persuasive. First, the Government suggests that §227(b)(1)(A)(iii) draws distinctions based on speakers (authorized debt collectors), not based on content. But that is not the law in front of us. This statute singles out calls \"made solely to collect a debt owed to or guaranteed by the United States,\" not all calls from authorized debt collectors. In any event, \"the fact that a distinction is speaker based\" does not \"automatically render the distinction content neutral.\" Reed, 576 U. S., at 170; Sorrell v. IMS Health Inc., 564 U. S. 552, 563–564 (2011). Indeed, the Court has held that \"‘laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference.’\" Reed, 576 U. S., at 170 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 658 (1994)). Second, the Government argues that the legality of a robocall under the statute depends simply on whether the caller is engaged in a particular economic activity, not on the content of speech. We disagree. The law here focuses on whether the caller is speaking about a particular topic. In Sorrell, this Court held that a law singling out pharmaceutical marketing for unfavorable treatment was content-based. 564 U. S., at 563–564. So too here. Third, according to the Government, if this statute is content-based because it singles out debt-collection speech, then so are statutes that regulate debt collection, like the Fair Debt Collection Practices Act. See 15 U. S. C. §1692 et seq.4 That slippery-slope argument is unpersuasive in this case. As we explained in Sorrell, \"the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.\" 564 U. S., at 567. The law here, like the Vermont law in Sorrell, \"does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers.\" Ibid. The Government’s concern is understandable, but the courts have generally been able to distinguish impermissible content-based speech restrictions from traditional or ordinary economic regulation of commercial activity that imposes incidental burdens on speech. The issue before us concerns only robocalls to cell phones. Our decision today on that issue fits comfortably within existing First Amendment precedent. Our decision is not intended to expand existing First Amendment doctrine or to otherwise affect traditional or ordinary economic regulation of commercial activity. In short, the robocall restriction with the government-debt exception is content-based. Under the Court’s precedents, a \"law that is content based\" is \"subject to strict scrutiny.\" Reed, 576 U. S., at 165. The Government concedes that it cannot satisfy strict scrutiny to justify the government-debt exception. We agree. The Government’s stated justification for the government-debt exception is collecting government debt. Although collecting government debt is no doubt a worthy goal, the Government concedes that it has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like. Having concluded that the 2015 government-debt exception created an unconstitutional exception to the 1991 robocall restriction, we must decide whether to invalidate the entire 1991 robocall restriction, or instead to invalidate and sever the 2015 government-debt exception. Before we apply ordinary severability principles, we must address plaintiffs’ broader initial argument for why the entire 1991 robocall restriction is unconstitutional. A Plaintiffs correctly point out that the Government’s asserted interest for the 1991 robocall restriction is consumer privacy. But according to plaintiffs, Congress’s willingness to enact the government-debt exception in 2015 betrays a newfound lack of genuine congressional concern for consumer privacy. As plaintiffs phrase it, the 2015 exception \"undermines the credibility\" of the Government’s interest in consumer privacy. Tr. of Oral Arg. 38. Plaintiffs further contend that if Congress no longer has a genuine interest in consumer privacy, then the underlying 1991 robocall restriction is no longer justified (presumably under any level of heightened scrutiny) and is therefore now unconstitutional. Plaintiffs’ argument is not without force, but we ultimately disagree with it. It is true that the Court has recognized that exceptions to a speech restriction \"may diminish the credibility of the government’s rationale for restricting speech in the first place.\" City of Ladue v. Gilleo, 512 U. S. 43, 52 (1994). But here, Congress’s addition of the government-debt exception in 2015 does not cause us to doubt the credibility of Congress’s continuing interest in protecting consumer privacy. After all, the government-debt exception is only a slice of the overall robocall landscape. This is not a case where a restriction on speech is littered with exceptions that substantially negate the restriction. On the contrary, even after 2015, Congress has retained a very broad restriction on robocalls. The pre-1991 statistics on robocalls show that a variety of organizations collectively made a huge number of robocalls. And there is no reason to think that the incentives for those organizations—and many others—to make robocalls has diminished in any way since 1991. The continuing robocall restriction proscribes tens of millions of would-be robocalls that would otherwise occur every day. Congress’s continuing broad prohibition of robocalls amply demonstrates Congress’s continuing interest in consumer privacy. The simple reality, as we assess the legislative developments, is that Congress has competing interests. Congress’s growing interest (as reflected in the 2015 amendment) in collecting government debt does not mean that Congress suddenly lacks a genuine interest in restricting robocalls. Plaintiffs seem to argue that Congress must be interested either in debt collection or in consumer privacy. But that is a false dichotomy, as we see it. As is not infrequently the case with either/or questions, the answer to this either/or question is \"both.\" Congress is interested both in collecting government debt and in protecting consumer privacy. Therefore, we disagree with plaintiffs’ broader initial argument for holding the entire 1991 robocall restriction unconstitutional. B Plaintiffs next focus on ordinary severability principles. Applying those principles, the question before the Court is whether (i) to invalidate the entire 1991 robocall restriction, as plaintiffs want, or (ii) to invalidate just the 2015 government-debt exception and sever it from the remainder of the statute, as the Government wants. We agree with the Government that we must invalidate the 2015 government-debt exception and sever that exception from the remainder of the statute. To explain why, we begin with general severability principles and then apply those principles to this case. 1 When enacting a law, Congress sometimes expressly addresses severability. For example, Congress may include a severability clause in the law, making clear that the unconstitutionality of one provision does not affect the rest of the law. See, e.g., 12 U. S. C. §5302; 15 U. S. C. §78gg; 47 U. S. C. §608. Alternatively, Congress may include a nonseverability clause, making clear that the unconstitutionality of one provision means the invalidity of some or all of the remainder of the law, to the extent specified in the text of the nonseverability clause. See, e.g., 4 U. S. C. §125; note following 42 U. S. C. §300aa–1; 94 Stat. 1797. When Congress includes an express severability or nonseverability clause in the relevant statute, the judicial inquiry is straightforward. At least absent extraordinary circumstances, the Court should adhere to the text of the severability or nonseverability clause. That is because a severability or nonseverability clause leaves no doubt about what the enacting Congress wanted if one provision of the law were later declared unconstitutional. A severability clause indicates \"that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision.\" Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 686 (1987). And a nonseverability clause does the opposite. On occasion, a party will nonetheless ask the Court to override the text of a severability or nonseverability clause on the ground that the text does not reflect Congress’s \"actual intent\" as to severability. That kind of argument may have carried some force back when courts paid less attention to statutory text as the definitive expression of Congress’s will. But courts today zero in on the precise statutory text and, as a result, courts hew closely to the text of severability or nonseverability clauses. See Seila Law LLC v. Consumer Financial Protection Bureau, ante, at 33 (plurality opinion); cf. Milner v. Department of Navy, 562 U. S. 562, 569–573 (2011).6 Of course, when enacting a law, Congress often does not include either a severability clause or a nonseverability clause. In those cases, it is sometimes said that courts applying severability doctrine should search for other indicia of congressional intent. For example, some of the Court’s cases declare that courts should sever the offending provision unless \"the statute created in its absence is legislation that Congress would not have enacted.\" Alaska Airlines, 480 U. S., at 685. But experience shows that this formulation often leads to an analytical dead end. That is because courts are not well equipped to imaginatively reconstruct a prior Congress’s hypothetical intent. In other words, absent a severability or nonseverability clause, a court often cannot really know what the two Houses of Congress and the President from the time of original enactment of a law would have wanted if one provision of a law were later declared unconstitutional. The Court’s cases have instead developed a strong presumption of severability. The Court presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute. For example, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., the Court set forth the \"normal rule\": \"Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.\" 561 U. S. 477, 508 (2010) (internal quotation marks omitted); see also Seila Law, ante, at 32 (same). In Regan v. Time, Inc., the plurality opinion likewise described a \"presumption\" in \"favor of severability\" and stated that the Court should \"refrain from invalidating more of the statute than is necessary.\" 468 U. S. 641, 652–653 (1984). The Court’s power and preference to partially invalidate a statute in that fashion has been firmly established since Marbury v. Madison. There, the Court invalidated part of §13 of the Judiciary Act of 1789. 1 Cranch 137, 179–180 (1803). The Judiciary Act did not contain a severability clause. But the Court did not proceed to invalidate the entire Judiciary Act. As Chief Justice Marshall later explained, if any part of an Act is \"unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the United States.\" Bank of Hamilton v. Lessee of Dudley, 2 Pet. 492, 526 (1829); see also Dorchy v. Kansas, 264 U. S. 286, 289–290 (1924) (\"A statute bad in part is not necessarily void in its entirety. Provisions within the legislative power may stand if separable from the bad\"); Loeb v. Columbia Township Trustees, 179 U. S. 472, 490 (1900) (\"one section of a statute may be repugnant to the Constitution without rendering the whole act void\"). From Marbury v. Madison to the present, apart from some isolated detours mostly in the late 1800s and early 1900s, the Court’s remedial preference after finding a provision of a federal law unconstitutional has been to salvage rather than destroy the rest of the law passed by Congress and signed by the President. The Court’s precedents reflect a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause. The Court’s presumption of severability supplies a workable solution—one that allows courts to avoid judicial policymaking or de facto judicial legislation in determining just how much of the remainder of a statute should be invalidated. The presumption also reflects the confined role of the Judiciary in our system of separated powers—stated otherwise, the presumption manifests the Judiciary’s respect for Congress’s legislative role by keeping courts from unnecessarily disturbing a law apart from invalidating the provision that is unconstitutional. Furthermore, the presumption recognizes that plaintiffs who successfully challenge one provision of a law may lack standing to challenge other provisions of that law. See Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___–___ (2018) (THOMAS, J., concurring) (slip op., at 5–6). Those and other considerations, taken together, have steered the Court to a presumption of severability. Applying the presumption, the Court invalidates and severs unconstitutional provisions from the remainder of the law rather than razing whole statutes or Acts of Congress. Put in common parlance, the tail (one unconstitutional provision) does not wag the dog (the rest of the codified statute or the Act as passed by Congress). Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute. If the rule were otherwise, the entire Judiciary Act of 1789 would be invalid as a consequence of Marbury v. Madison.8 Before severing a provision and leaving the remainder of a law intact, the Court must determine that the remainder of the statute is \"capable of functioning independently\" and thus would be \"fully operative\" as a law. Seila Law, ante, at 33; see Murphy, 584 U. S., at ___–___ (slip op., at 25–30). But it is fairly unusual for the remainder of a law not to be operative.9 2 We next apply those general severability principles to this case. Recall how this statute came together. Passed by Congress and signed by President Franklin Roosevelt in 1934, the Communications Act is codified in Title 47 of the U. S. Code. The TCPA of 1991 amended the Communications Act by adding the robocall restriction, which is codified at §227(b)(1)(A)(iii) of Title 47. The Bipartisan Budget Act of 2015 then amended the Communications Act by adding the government-debt exception, which is codified along with the robocall restriction at §227(b)(1)(A)(iii) of Title 47. Since 1934, the Communications Act has contained an express severability clause: \"If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter and the application of such provision to other persons or circumstances shall not be affected thereby.\" 47 U. S. C. §608 (emphasis added). The \"chapter\" referred to in the severability clause is Chapter 5 of Title 47. And Chapter 5 in turn encompasses §151 to §700 of Title 47, and therefore covers §227 of Title 47, the provision with the robocall restriction and the government-debt exception. Enacted in 2015, the government-debt exception added an unconstitutional discriminatory exception to the robocall restriction. The text of the severability clause squarely covers the unconstitutional government-debt exception and requires that we sever it. To get around the text of the severability clause, plaintiffs point out that the Communications Act’s severability clause was enacted in 1934, long before the TCPA’s 1991 robocall restriction and the 2015 government-debt exception. But a severability clause must be interpreted according to its terms, regardless of when Congress enacted it. See n. 6, supra. Even if the severability clause did not apply to the government-debt provision at issue in this case (or even if there were no severability clause in the Communications Act), we would apply the presumption of severability as described and applied in cases such as Free Enterprise Fund. And under that presumption, we likewise would sever the 2015 government-debt exception, the constitutionally offending provision. With the government-debt exception severed, the remainder of the law is capable of functioning independently and thus would be fully operative as a law. Indeed, the remainder of the robocall restriction did function independently and fully operate as a law for 20-plus years before the government-debt exception was added in 2015. The Court’s precedents further support severing the 2015 government-debt exception. The Court has long applied severability principles in cases like this one, where Congress added an unconstitutional amendment to a prior law. In those cases, the Court has treated the original, pre-amendment statute as the \"valid expression of the legislative intent.\" Frost v. Corporation Comm’n of Okla., 278 U. S. 515, 526–527 (1929). The Court has severed the \"exception introduced by amendment,\" so that \"the original law stands without the amendatory exception.\" Truax v. Corrigan, 257 U. S. 312, 342 (1921). For example, in Eberle v. Michigan, the Court held that \"discriminatory wine-and-cider amendments\" added in 1899 and 1903 were severable from the underlying 1889 state law generally prohibiting the manufacture of alcohol. 232 U. S. 700, 704–705 (1914). In Truax, the Court ruled that a 1913 amendment prohibiting Arizona courts from issuing injunctions in labor disputes was invalid and severable from the underlying 1901 law authorizing Arizona courts to issue injunctions generally. 257 U. S., at 341–342. In Frost, the Court concluded that a 1925 amendment exempting certain corporations from making a showing of \"public necessity\" in order to obtain a cotton gin license was invalid and severable from the 1915 law that required that showing. 278 U. S., at 525–528. Echoing Marbury, the Court in Frost explained that an unconstitutional statutory amendment \"is a nullity\" and \"void\" when enacted, and for that reason has no effect on the original statute. 278 U. S., at 526–527 (internal quotation marks omitted).11 Similarly, in 1932, Congress enacted the Federal Kidnaping Act, and then in 1934, added a death penalty provision to the Act. The death penalty provision was later declared unconstitutional by this Court. In considering severability, the Court stated that the \"law as originally enacted in 1932 contained no capital punishment provision.\" United States v. Jackson, 390 U. S. 570, 586 (1968). And when Congress amended the Act in 1934 to add the death penalty, \"the statute was left substantially unchanged in every other respect.\" Id., at 587–588. The Court found it \"difficult to imagine a more compelling case for severability.\" Id., at 589. So too here. In sum, the text of the Communications Act’s severability clause requires that the Court sever the 2015 government-debt exception from the remainder of the statute. And even if the text of the severability clause did not apply here, the presumption of severability would require that the Court sever the 2015 government-debt exception from the remainder of the statute. 3 One final severability wrinkle remains. This is an equal-treatment case, and equal-treatment cases can sometimes pose complicated severability questions. The \"First Amendment is a kind of Equal Protection Clause for ideas.\" Williams-Yulee v. Florida Bar, 575 U. S. 433, 470 (2015) (Scalia, J., dissenting). And Congress violated that First Amendment equal-treatment principle in this case by favoring debt-collection robocalls and discriminating against political and other robocalls. When the constitutional violation is unequal treatment, as it is here, a court theoretically can cure that unequal treatment either by extending the benefits or burdens to the exempted class, or by nullifying the benefits or burdens for all. See, e.g., Heckler v. Mathews, 465 U. S. 728, 740 (1984). Here, for example, the Government would prefer to cure the unequal treatment by extending the robocall restriction and thereby proscribing nearly all robocalls to cell phones. By contrast, plaintiffs want to cure the unequal treatment by nullifying the robocall restriction and thereby allowing all robocalls to cell phones. When, as here, the Court confronts an equal-treatment constitutional violation, the Court generally applies the same commonsense severability principles described above. If the statute contains a severability clause, the Court typically severs the discriminatory exception or classification, and thereby extends the relevant statutory benefits or burdens to those previously exempted, rather than nullifying the benefits or burdens for all. In light of the presumption of severability, the Court generally does the same even in the absence of a severability clause. The Court’s precedents reflect that preference for extension rather than nullification. See, e.g., Sessions v. Morales-Santana, 582 U. S. ___, ___ (2017) (slip op., at 25); Califano v. Westcott, 443 U. S. 76, 89–91 (1979); Califano v. Goldfarb, 430 U. S. 199, 202– 204, 213–217 (1977) (plurality opinion); Jimenez v. Weinberger, 417 U. S. 628, 637–638 (1974); Department of Agriculture v. Moreno, 413 U. S. 528, 529, 537–538 (1973); Frontiero v. Richardson, 411 U. S. 677, 678–679, 690–691 (1973) (plurality opinion); Welsh v. United States, 398 U. S. 333, 361–367 (1970) (Harlan, J., concurring in result). To be sure, some equal-treatment cases can raise complex questions about whether it is appropriate to extend benefits or burdens, rather than nullifying the benefits or burdens. See, e.g., Morales-Santana, 582 U. S. ___. For example, there can be due process, fair notice, or other independent constitutional barriers to extension of benefits or burdens. Cf. Miller v. Albright, 523 U. S. 420, 458–459 (1998) (Scalia, J., concurring in judgment); see generally Ginsburg, Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation, 28 Clev. St. L. Rev. 301 (1979). There also can be knotty questions about what is the exception and what is the rule. But here, we need not tackle all of the possible hypothetical applications of severability doctrine in equal-treatment cases. The government-debt exception is a relatively narrow exception to the broad robocall restriction, and severing the government-debt exception does not raise any other constitutional problems. Plaintiffs insist, however, that a First Amendment equal-treatment case is different. According to plaintiffs, a court should not cure \"a First Amendment violation by outlawing more speech.\" Brief for Respondents 34. The implicit premise of that argument is that extending the robocall restriction to debt-collection robocalls would be unconstitutional. But that is wrong. A generally applicable robocall restriction would be permissible under the First Amendment. Extending the robocall restriction to those robocalls raises no First Amendment problem. So the First Amendment does not tell us which way to cure the unequal treatment in this case. Therefore, we apply traditional severability principles. And as we have explained, severing the 2015 government-debt exception cures the unequal treatment and constitutes the proper result under the Court’s traditional severability principles. In short, the correct result in this case is to sever the 2015 government-debt exception and leave in place the longstanding robocall restriction. JUSTICE GORSUCH’s well-stated separate opinion makes a number of important points that warrant this respectful response. JUSTICE GORSUCH suggests that our decision provides \"no relief\" to plaintiffs. Post, at 6. We disagree. Plaintiffs want to be able to make political robocalls to cell phones, and they have not received that relief. But the First Amendment complaint at the heart of their suit was unequal treatment. Invalidating and severing the government-debt exception fully addresses that First Amendment injury. JUSTICE GORSUCH further suggests that plaintiffs may lack standing to challenge the government-debt exception, because that exception merely favors others. See ibid. But the Court has squarely held that a plaintiff who suffers unequal treatment has standing to challenge a discriminatory exception that favors others. See Heckler v. Mathews, 465 U. S., at 737–740 (a plaintiff who suffers unequal treatment has standing to seek \"withdrawal of benefits from the favored class\"); see also Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666 (1993) (\"The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit\"). JUSTICE GORSUCH also objects that our decision today \"harms strangers to this suit\" by eliminating favorable treatment for debt collectors. Post, at 6. But that is necessarily true in many cases where a court cures unequal treatment by, for example, extending a burden or nullifying a benefit. See, e.g., Morales-Santana, 582 U. S., at ___ (slip op., at 28) (curing unequal treatment of children born to unwed U. S.-citizen fathers by extending a burden to children of unwed U. S.-citizen mothers); Orr v. Orr, 374 So. 2d 895, 896–897 (Ala. Civ. App. 1979) (extending alimony obligations to women after a male plaintiff successfully challenged Alabama’s discriminatory alimony statute in this Court). Moreover, JUSTICE GORSUCH’s approach to this case would not solve the problem of harming strangers to this suit; it would just create a different and much bigger problem. His proposed remedy of injunctive relief, plus stare decisis, would in effect allow all robocalls to cell phones— notwithstanding Congress’s decisive choice to prohibit most robocalls to cell phones. That is not a judicially modest approach but is more of a wolf in sheep’s clothing. That approach would disrespect the democratic process, through which the people’s representatives have made crystal clear that robocalls must be restricted. JUSTICE GORSUCH’s remedy would end up harming a different and far larger set of strangers to this suit—the tens of millions of consumers who would be bombarded every day with nonstop robocalls notwithstanding Congress’s clear prohibition of those robocalls. JUSTICE GORSUCH suggests more broadly that severability doctrine may need to be reconsidered. But when and how? As the saying goes, John Marshall is not walking through that door. And this Court, in this and other recent decisions, has clarified and refined severability doctrine by emphasizing firm adherence to the text of severability clauses, and underscoring the strong presumption of severability. The doctrine as so refined is constitutionally wellrooted, see, e.g., Marbury v. Madison, 1 Cranch 137 (Marshall, C. J.), and can be predictably applied. True, there is no magic solution to severability that solves every conundrum, especially in equal-treatment cases, but the Court’s current approach as reflected in recent cases such as Free Enterprise Fund and Seila Law is constitutional, stable, predictable, and commonsensical. In 1991, Congress enacted a general restriction on robocalls to cell phones. In 2015, Congress carved out an exception that allowed robocalls made to collect government debt. In doing so, Congress favored debt-collection speech over plaintiffs’ political speech. We hold that the 2015 government-debt exception added an unconstitutional exception to the law. We cure that constitutional violation by invalidating the 2015 government-debt exception and severing it from the remainder of the statute. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed."},
{"docket_number": "19-465", "syllabus": "When Americans cast ballots for presidential candidates, their votes actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. The States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred. With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State’s popular vote. Most States also compel electors to pledge to support the nominee of that party. Relevant here, 15 States back up their pledge laws with some kind of sanction. Almost all of these States immediately remove a so-called \"faithless elector\" from his position, substituting an alternate whose vote the State reports instead. A few States impose a monetary fine on any elector who flouts his pledge. Three Washington electors, Peter Chiafalo, Levi Guerra, and Esther John (the Electors), violated their pledges to support Hillary Clinton in the 2016 presidential election. In response, the State fined the Electors $1,000 apiece for breaking their pledges to support the same candidate its voters had. The Electors challenged their fines in state court, arguing that the Constitution gives members of the Electoral College the right to vote however they please. The Washington Superior Court rejected that claim, and the State Supreme Court affirmed, relying on Ray v. Blair, 343 U. S. 214. In Ray, this Court upheld a pledge requirement—though one without a penalty to back it up. Ray held that pledges were consistent with the Constitution’s text and our Nation’s history, id., at 225–230; but it reserved the question whether a State can enforce that requirement through legal sanctions. Held: A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President. Pp. 8–18. (a) Article II, §1 gives the States the authority to appoint electors \"in such Manner as the Legislature thereof may direct.\" This Court has described that clause as \"conveying the broadest power of determination\" over who becomes an elector. McPherson v. Blacker, 146 U. S. 1, 27. And the power to appoint an elector (in any manner) includes power to condition his appointment, absent some other constitutional constraint. A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period. Or more substantively, a State can insist (as Ray allowed) that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote. Or—so long as nothing else in the Constitution poses an obstacle—a State can add an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty. Which is to say that the State’s appointment power, barring some outside constraint, enables the enforcement of a pledge like Washington’s. Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does. Article II includes only the instruction to each State to appoint electors, and the Twelfth Amendment only sets out the electors’ voting procedures. And while two contemporaneous State Constitutions incorporated language calling for the exercise of elector discretion, no language of that kind made it into the Federal Constitution. Contrary to the Electors’ argument, Article II’s use of the term \"electors\" and the Twelfth Amendment’s requirement that the electors \"vote,\" and that they do so \"by ballot,\" do not establish that electors must have discretion. The Electors and their amici object that the Framers using those words expected the Electors’ votes to reflect their own judgments. But even assuming that outlook was widely shared, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page. Pp. 8–13. (b) \"Long settled and established practice\" may have \"great weight in a proper interpretation of constitutional provisions.\" The Pocket Veto Case, 279 U. S. 655, 689. The Electors make an appeal to that kind of practice in asserting their right to independence, but \"our whole experience as a Nation\" points in the opposite direction. NLRB v. Noel Canning, 573 U. S. 513, 557. From the first elections under the Constitution, States sent electors to the College to vote for pre-selected candidates, rather than to use their own judgment. The electors rapidly settled into that non-discretionary role. See Ray, 343 U. S., at 228–229. Ratified at the start of the 19th century, the Twelfth Amendment both acknowledged and facilitated the Electoral College’s emergence as a mechanism not for deliberation but for party-line voting. Courts and commentators throughout that century recognized the presidential electors as merely acting on other people’s preferences. And state election laws evolved to reinforce that development, ensuring that a State’s electors would vote the same way as its citizens. Washington’s law is only another in the same vein. It reflects a longstanding tradition in which electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen. Pp. 13– 17. 193 Wash. 2d 380, 441 P. 3d 807, affirmed.", "opinion": "Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. Those few \"electors\" then choose the President. The States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred. With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State’s popular vote. Most States also compel electors to pledge in advance to support the nominee of that party. This Court upheld such a pledge requirement decades ago, rejecting the argument that the Constitution \"demands absolute freedom for the elector to vote his own choice.\" Ray v. Blair, 343 U. S. 214, 228 (1952). Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote. We hold that a State may do so. I Our Constitution’s method of picking Presidents emerged from an eleventh-hour compromise. The issue, one delegate to the Convention remarked, was \"the most difficult of all [that] we have had to decide.\" 2 Records of the Federal Convention of 1787, p. 501 (M. Farrand rev. 1966) (Farrand). Despite long debate and many votes, the delegates could not reach an agreement. See generally N. Peirce & L. Longley, The People’s President 19–22 (rev. 1981). In the dying days of summer, they referred the matter to the so-called Committee of Eleven to devise a solution. The Committee returned with a proposal for the Electoral College. Just two days later, the delegates accepted the recommendation with but a few tweaks. James Madison later wrote to a friend that the \"difficulty of finding an unexceptionable [selection] process\" was \"deeply felt by the Convention.\" Letter to G. Hay (Aug. 23, 1823), in 3 Farrand 458. Because \"the final arrangement of it took place in the latter stage of the Session,\" Madison continued, \"it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such Bodies: tho’ the degree was much less than usually prevails in them.\" Ibid. Whether less or not, the delegates soon finished their work and departed for home. The provision they approved about presidential electors is fairly slim. Article II, §1, cl. 2 says: \"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.\" The next clause (but don’t get attached: it will soon be superseded) set out the procedures the electors were to follow in casting their votes. In brief, each member of the College would cast votes for two candidates in the presidential field. The candidate with the greatest number of votes, assuming he had a majority, would become President. The runner-up would become Vice President. If no one had a majority, the House of Representatives would take over and decide the winner. That plan failed to anticipate the rise of political parties, and soon proved unworkable. The Nation’s first contested presidential election occurred in 1796, after George Washington’s retirement. John Adams came in first among the candidates, and Thomas Jefferson second. That meant the leaders of the era’s two warring political parties—the Federalists and the Republicans—became President and Vice President respectively. (One might think of this as fodder for a new season of Veep.) Four years later, a different problem arose. Jefferson and Aaron Burr ran that year as a Republican Party ticket, with the former meant to be President and the latter meant to be Vice. For that plan to succeed, Jefferson had to come in first and Burr just behind him. Instead, Jefferson came in first and Burr . . . did too. Every elector who voted for Jefferson also voted for Burr, producing a tie. That threw the election into the House of Representatives, which took no fewer than 36 ballots to elect Jefferson. (Alexander Hamilton secured his place on the Broadway stage—but possibly in the cemetery too—by lobbying Federalists in the House to tip the election to Jefferson, whom he loathed but viewed as less of an existential threat to the Republic.) By then, everyone had had enough of the Electoral College’s original voting rules. The result was the Twelfth Amendment, whose main part provided that electors would vote separately for President and Vice President. The Amendment, ratified in 1804, says \"The Electors shall meet in their respective states and vote by ballot for President and Vice-President . . .; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to [Congress, where] the votes shall then be counted.\" The Amendment thus brought the Electoral College’s voting procedures into line with the Nation’s new party system. Within a few decades, the party system also became the means of translating popular preferences within each State into Electoral College ballots. In the Nation’s earliest elections, state legislatures mostly picked the electors, with the majority party sending a delegation of its choice to the Electoral College. By 1832, though, all States but one had introduced popular presidential elections. See Peirce & Longley, The People’s President, at 45. At first, citizens voted for a slate of electors put forward by a political party, expecting that the winning slate would vote for its party’s presidential (and vice presidential) nominee in the Electoral College. By the early 20th century, citizens in most States voted for the presidential candidate himself; ballots increasingly did not even list the electors. See Albright, The Presidential Short Ballot, 34 Am. Pol. Sci. Rev. 955, 955–957 (1940). After the popular vote was counted, States appointed the electors chosen by the party whose presidential nominee had won statewide, again expecting that they would vote for that candidate in the Electoral College. In the 20th century, many States enacted statutes meant to guarantee that outcome—that is, to prohibit so-called faithless voting. Rather than just assume that party-picked electors would vote for their party’s winning nominee, those States insist that they do so. As of now, 32 States and the District of Columbia have such statutes on their books. They are typically called pledge laws because most demand that electors take a formal oath or pledge to cast their ballot for their party’s presidential (and vice presidential) candidate. Others merely impose that duty by law. Either way, the statutes work to ensure that the electors vote for the candidate who got the most statewide votes in the presidential election. Most relevant here, States began about 60 years ago to back up their pledge laws with some kind of sanction. By now, 15 States have such a system.2 Almost all of them immediately remove a faithless elector from his position, substituting an alternate whose vote the State reports instead. A few States impose a monetary fine on any elector who flouts his pledge. Washington is one of the 15 States with a sanctions-backed pledge law designed to keep the State’s electors in line with its voting citizens. As all States now do, Washington requires political parties fielding presidential candidates to nominate a slate of electors. See Wash. Rev. Code §29A.56.320(1). On Election Day, the State gives voters a ballot listing only the candidates themselves. See §29A.56.320(2). When the vote comes in, Washington moves toward appointing the electors chosen by the party whose candidate won the statewide count. See ibid. But before the appointment can go into effect, each elector must \"execute [a] pledge\" agreeing to \"mark [her] ballots\" for the presidential (and vice presidential) candidate of the party nominating her. §29A.56.084. And the elector must comply with that pledge, or else face a sanction. At the time relevant here, the punishment was a civil fine of up to $1,000. See §29A.56.340 (2016). This case involves three Washington electors who violated their pledges in the 2016 presidential election. That year, Washington’s voters chose Hillary Clinton over Donald Trump for President. The State thus appointed as its electors the nominees of the Washington State Democratic Party. Among those Democratic electors were petitioners Peter Chiafalo, Levi Guerra, and Esther John (the Electors). All three pledged to support Hillary Clinton in the Electoral College. But as that vote approached, they decided to cast their ballots for someone else. The three hoped they could encourage other electors—particularly those from States Donald Trump had carried—to follow their example. The idea was to deprive him of a majority of electoral votes and throw the election into the House of Representatives. So the three Electors voted for Colin Powell for President. But their effort failed. Only seven electors across the Nation cast faithless votes—the most in a century, but well short of the goal. Candidate Trump became President Trump. And, more to the point here, the State fined the Electors $1,000 apiece for breaking their pledges to support the same candidate its voters had. The Electors challenged their fines in state court, arguing that the Constitution gives members of the Electoral College the right to vote however they please. The Washington Superior Court rejected the Electors’ claim in an oral decision, and the State’s Supreme Court affirmed that judgment. See In re Guerra, 193 Wash. 2d 380, 441 P. 3d 807 (2019). The court relied heavily on our decision in Ray v. Blair upholding a pledge requirement—though one without a penalty to back it up. See 193 Wash. 2d, at 393–399, 441 P. 3d, at 813–816. In the state court’s view, Washington’s penalty provision made no difference. Article II of the Constitution, the court noted, grants broad authority to the States to appoint electors, and so to impose conditions on their appointments. See id., at 393, 395, 441 P. 3d, at 813, 814. And nothing in the document \"suggests that electors have discretion to cast their votes without limitation or restriction by the state legislature.\" Id., at 396, 441 P. 3d, at 814. A few months later, the United States Court of Appeals for the Tenth Circuit reached the opposite conclusion in a case involving another faithless elector. See Baca v. Colorado Dept. of State, 935 F. 3d 887 (2019). The Circuit Court held that Colorado could not remove the elector, as its pledge law directs, because the Constitution \"provide[s] presidential electors the right to cast a vote\" for President \"with discretion.\" Id., at 955. We granted certiorari to resolve the split. 589 U. S. ___ (2020). We now affirm the Washington Supreme Court’s judgment that a State may enforce its pledge law against an elector. As the state court recognized, this Court has considered elector pledge requirements before. Some seventy years ago Edmund Blair tried to become a presidential elector in Alabama. Like all States, Alabama lodged the authority to pick electors in the political parties fielding presidential candidates. And the Alabama Democratic Party required a pledge phrased much like Washington’s today. No one could get on the party’s slate of electors without agreeing to vote in the Electoral College for the Democratic presidential candidate. Blair challenged the pledge mandate. He argued that the \"intention of the Founders was that [presidential] electors should exercise their judgment in voting.\" Ray, 343 U. S., at 225. The pledge requirement, he claimed, \"interfere[d] with the performance of this constitutional duty to select [a president] according to the best judgment of the elector.\" Ibid. Our decision in Ray rejected that challenge. \"Neither the language of Art. II, §1, nor that of the Twelfth Amendment,\" we explained, prohibits a State from appointing only electors committed to vote for a party’s presidential candidate. Ibid. Nor did the Nation’s history suggest such a bar. To the contrary, \"[h]istory teaches that the electors were expected to support the party nominees\" as far back as the earliest contested presidential elections. Id., at 228. \"[L]ongstanding practice\" thus \"weigh[ed] heavily\" against Blair’s claim. Id., at 228–230. And current voting procedures did too. The Court noted that by then many States did not even put electors’ names on a presidential ballot. See id., at 229. The whole system presupposed that the electors, because of either an \"implied\" or an \"oral pledge,\" would vote for the candidate who had won the State’s popular election. Ibid. Ray, however, reserved a question not implicated in the case: Could a State enforce those pledges through legal sanctions? See id., at 230. Or would doing so violate an elector’s \"constitutional freedom\" to \"vote as he may choose\" in the Electoral College? Ibid. Today, we take up that question. We uphold Washington’s penalty-backed pledge law for reasons much like those given in Ray. The Constitution’s text and the Nation’s history both support allowing a State to enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President. A Article II, §1’s appointments power gives the States farreaching authority over presidential electors, absent some other constitutional constraint.4 As noted earlier, each State may appoint electors \"in such Manner as the Legislature thereof may direct.\" Art. II, §1, cl. 2; see supra, at 2. This Court has described that clause as \"conveying the broadest power of determination\" over who becomes an elector. McPherson v. Blacker, 146 U. S. 1, 27 (1892).5 And the power to appoint an elector (in any manner) includes power to condition his appointment—that is, to say what the elector must do for the appointment to take effect. A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period. Or more substantively, a State can insist (as Ray allowed) that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote. See Ray, 343 U. S., at 227 (A pledge requirement \"is an exercise of the state’s right to appoint electors in such manner\" as it chooses). Or—so long as nothing else in the Constitution poses an obstacle—a State can add, as Washington did, an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty. Which is to say that the State’s appointment power, barring some outside constraint, enables the enforcement of a pledge like Washington’s.6 And nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does. The Constitution is barebones about electors. Article II includes only the instruction to each State to appoint, in whatever way it likes, as many electors as it has Senators and Representatives (except that the State may not appoint members of the Federal Government). The Twelfth Amendment then tells electors to meet in their States, to vote for President and Vice President separately, and to transmit lists of all their votes to the President of the United States Senate for counting. Appointments and procedures and . . . that is all. See id., at 225. The Framers could have done it differently; other constitutional drafters of their time did. In the founding era, two States—Maryland and Kentucky—used electoral bodies selected by voters to choose state senators (and in Kentucky’s case, the Governor too). The Constitutions of both States, Maryland’s drafted just before and Kentucky’s just after the U. S. Constitution, incorporated language that would have made this case look quite different. Both state Constitutions required all electors to take an oath \"to elect without favour, affection, partiality, or prejudice, such persons for Senators, as they, in their judgment and conscience, believe best qualified for the office.\" Md. Declaration of Rights, Art. XVIII (1776); see Ky. Const., Art. I, §14 (1792) (using identical language except adding \"[and] for Governor\"). The emphasis on independent \"judgment and conscience\" called for the exercise of elector discretion. But although the Framers knew of Maryland’s Constitution, no language of that kind made it into the document they drafted. See 1 Farrand 218, 289 (showing that Madison and Hamilton referred to the Maryland system at the Convention). The Electors argue that three simple words stand in for more explicit language about discretion. Article II, §1 first names the members of the Electoral College: \"electors.\" The Twelfth Amendment then says that electors shall \"vote\" and that they shall do so by \"ballot.\" The \"plain meaning\" of those terms, the Electors say, requires electors to have \"freedom of choice.\" Brief for Petitioners 29, 31. If the States could control their votes, \"the electors would not be ‘Electors,’ and their ‘vote by Ballot’ would not be a ‘vote.’\" Id., at 31. But those words need not always connote independent choice. Suppose a person always votes in the way his spouse, or pastor, or union tells him to. We might question his judgment, but we would have no problem saying that he \"votes\" or fills in a \"ballot.\" In those cases, the choice is in someone else’s hands, but the words still apply because they can signify a mechanical act. Or similarly, suppose in a system allowing proxy voting (a common practice in the founding era), the proxy acts on clear instructions from the principal, with no freedom of choice. Still, we might well say that he cast a \"ballot\" or \"voted,\" though the preference registered was not his own. For that matter, some elections give the voter no real choice because there is only one name on a ballot (consider an old Soviet election, or even a downballot race in this country). Yet if the person in the voting booth goes through the motions, we consider him to have voted. The point of all these examples is to show that although voting and discretion are usually combined, voting is still voting when discretion departs. Maybe most telling, switch from hypotheticals to the members of the Electoral College. For centuries now, as we’ll later show, almost all have considered themselves bound to vote for their party’s (and the state voters’) preference. See infra, at 13–17. Yet there is no better description for what they do in the Electoral College than \"vote\" by \"ballot.\" And all these years later, everyone still calls them \"electors\"—and not wrongly, because even though they vote without discretion, they do indeed elect a President. The Electors and their amici object that the Framers using those words expected the Electors’ votes to reflect their own judgments. See Brief for Petitioners 18–19; Brief for Independence Institute as Amicus Curiae 11–15. Hamilton praised the Constitution for entrusting the Presidency to \"men most capable of analyzing the qualities\" needed for the office, who would make their choices \"under circumstances favorable to deliberation.\" The Federalist No. 68, p. 410 (C. Rossiter ed. 1961). So too, John Jay predicted that the Electoral College would \"be composed of the most enlightened and respectable citizens,\" whose choices would reflect \"discretion and discernment.\" Id., No. 64, at 389. But even assuming other Framers shared that outlook, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page. All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol. Those sparse instructions took no position on how independent from—or how faithful to—party and popular preferences the electors’ votes should be. On that score, the Constitution left much to the future. And the future did not take long in coming. Almost immediately, presidential electors became trusty transmitters of other people’s decisions. B \"Long settled and established practice\" may have \"great weight in a proper interpretation of constitutional provisions.\" The Pocket Veto Case, 279 U. S. 655, 689 (1929). As James Madison wrote, \"a regular course of practice\" can \"liquidate & settle the meaning of \" disputed or indeterminate \"terms & phrases.\" Letter to S. Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see The Federalist No. 37, at 225. The Electors make an appeal to that kind of practice in asserting their right to independence. But \"our whole experience as a Nation\" points in the opposite direction. NLRB v. Noel Canning, 573 U. S. 513, 557 (2014) (internal quotation marks omitted). Electors have only rarely exercised discretion in casting their ballots for President. From the first, States sent them to the Electoral College—as today Washington does—to vote for preselected candidates, rather than to use their own judgment. And electors (or at any rate, almost all of them) rapidly settled into that non-discretionary role. See Ray, 343 U. S., at 228–229. Begin at the beginning—with the Nation’s first contested election in 1796. Would-be electors declared themselves for one or the other party’s presidential candidate. (Recall that in this election Adams led the Federalists against Jefferson’s Republicans. See supra, at 3.) In some States, legislatures chose the electors; in others, ordinary voters did. But in either case, the elector’s declaration of support for a candidate—essentially a pledge—was what mattered. Or said differently, the selectors of an elector knew just what they were getting—not someone who would deliberate in good Hamiltonian fashion, but someone who would vote for their party’s candidate. \"[T]he presidential electors,\" one historian writes, \"were understood to be instruments for expressing the will of those who selected them, not independent agents authorized to exercise their own judgment.\" Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors, 59 Ariz. L. Rev. 903, 911 (2017). And when the time came to vote in the Electoral College, all but one elector did what everyone expected, faithfully representing their selectors’ choice of presidential candidate.7 The Twelfth Amendment embraced this new reality— both acknowledging and facilitating the Electoral College’s emergence as a mechanism not for deliberation but for party-line voting. Remember that the Amendment grew out of a pair of fiascos—the election of two then-bitter rivals as President and Vice President, and the tie vote that threw the next election into the House. See supra, at 3. Both had occurred because the Constitution’s original voting procedures gave electors two votes for President, rather than one apiece for President and Vice President. Without the capacity to vote a party ticket for the two offices, the electors had foundered, and could do so again. If the predominant party’s electors used both their votes on their party’s two candidates, they would create a tie (see 1800). If they intentionally cast fewer votes for the intended vice president, they risked the opposite party’s presidential candidate sneaking into the second position (see 1796). By allowing the electors to vote separately for the two offices, the Twelfth Amendment made party-line voting safe. The Amendment thus advanced, rather than resisted, the practice that had arisen in the Nation’s first elections. An elector would promise to legislators or citizens to vote for their party’s presidential and vice presidential candidates—and then follow through on that commitment. Or as the Court wrote in Ray, the new procedure allowed an elector to \"vote the regular party ticket\" and thereby \"carry out the desires of the people\" who had sent him to the Electoral College. Ray, 343 U. S., at 224, n. 11. No independent electors need apply. Courts and commentators throughout the 19th century recognized the electors as merely acting on other people’s preferences. Justice Story wrote that \"the electors are now chosen wholly with reference to particular candidates,\" having either \"silently\" or \"publicly pledge[d]\" how they will vote. 3 Commentaries on the Constitution of the United States §1457, p. 321 (1833). \"[N]othing is left to the electors,\" he continued, \"but to register [their] votes, which are already pledged.\" Id., at 321–322. Indeed, any \"exercise of an independent judgment would be treated[ ] as a political usurpation, dishonourable to the individual, and a fraud upon his constituents.\" Id., at 322. Similarly, William Rawle explained how the Electoral College functioned: \"[T]he electors do not assemble in their several states for a free exercise of their own judgments, but for the purpose of electing\" the nominee of \"the predominant political party which has chosen those electors.\" A View of the Constitution of the United States of America 57 (2d ed. 1829). Looking back at the close of the century, this Court had no doubt that Story’s and Rawle’s descriptions were right. The electors, the Court noted, were chosen \"simply to register the will of the appointing power in respect of a particular candidate.\" McPherson, 146 U. S., at 36. State election laws evolved to reinforce that development, ensuring that a State’s electors would vote the same way as its citizens. As noted earlier, state legislatures early dropped out of the picture; by the mid-1800s, ordinary voters chose electors. See supra, at 4. Except that increasingly, they did not do so directly. States listed only presidential candidates on the ballot, on the understanding that electors would do no more than vote for the winner. Usually, the State could ensure that result by appointing electors chosen by the winner’s party. But to remove any doubt, States began in the early 1900s to enact statutes requiring electors to pledge that they would squelch any urge to break ranks with voters. See supra, at 5. Washington’s law, penalizing a pledge’s breach, is only another in the same vein. It reflects a tradition more than two centuries old. In that practice, electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen. The history going the opposite way is one of anomalies only. The Electors stress that since the founding, electors have cast some 180 faithless votes for either President or Vice President. See Brief for Petitioners 7. But that is 180 out of over 23,000. See Brief for Republican National Committee as Amicus Curiae 19. And more than a third of the faithless votes come from 1872, when the Democratic Party’s nominee (Horace Greeley) died just after Election Day. Putting those aside, faithless votes represent just one-half of one percent of the total. Still, the Electors counter, Congress has counted all those votes. See Brief for Petitioners 46. But because faithless votes have never come close to affecting an outcome, only one has ever been challenged. True enough, that one was counted. But the Electors cannot rest a claim of historical tradition on one counted vote in over 200 years. And anyway, the State appointing that elector had no law requiring a pledge or otherwise barring his use of discretion. Congress’s deference to a state decision to tolerate a faithless vote is no ground for rejecting a state decision to penalize one. III The Electors’ constitutional claim has neither text nor history on its side. Article II and the Twelfth Amendment give States broad power over electors, and give electors themselves no rights. Early in our history, States decided to tie electors to the presidential choices of others, whether legislatures or citizens. Except that legislatures no longer play a role, that practice has continued for more than 200 years. Among the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise. Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule. The judgment of the Supreme Court of Washington is Affirmed."},
{"docket_number": "19-46", "syllabus": "A generic name—the name of a class of products or services—is ineligible for federal trademark registration. Respondent Booking.com, an enterprise that maintains a travel-reservation website by the same name, sought federal registration of marks including the term \"Booking.com.\" Concluding that \"Booking.com\" is a generic name for online hotel-reservation services, the U. S. Patent and Trademark Office (PTO) refused registration. Booking.com sought judicial review, and the District Court determined that \"Booking.com\"—unlike the term \"booking\" standing alone—is not generic. The Court of Appeals affirmed, finding no error in the District Court’s assessment of how consumers perceive the term \"Booking.com.\" The appellate court also rejected the PTO’s contention that, as a rule, combining a generic term like \"booking\" with \".com\" yields a generic composite. Held: A term styled \"generic.com\" is a generic name for a class of goods or services only if the term has that meaning to consumers. Pp. 6–14. (a) Whether a compound term is generic turns on whether that term, taken as a whole, signifies to consumers a class of goods or services. The courts below determined, and the PTO no longer disputes, that consumers do not in fact perceive the term \"Booking.com\" that way. Because \"Booking.com\" is not a generic name to consumers, it is not generic. Pp. 6–7. (b) Opposing that determination, the PTO urges a nearly per se rule: When a generic term is combined with a generic Internet-domainname suffix like \".com,\" the resulting combination is generic. The rule the PTO proffers is not borne out by the PTO’s own past practice and lacks support in trademark law or policy. Pp. 7–14. (1) The PTO’s proposed rule does not follow from Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598. Goodyear, the PTO maintains, established that adding a generic corporate designation like \"Company\" to a generic term does not confer trademark eligibility. According to the PTO, adding \".com\" to a generic term—like adding \"Company\"—can convey no source-identifying meaning. That premise is faulty, for only one entity can occupy a particular Internet domain name at a time, so a \"generic.com\" term could convey to consumers an association with a particular website. Moreover, an unyielding legal rule that entirely disregards consumer perception is incompatible with a bedrock principle of the Lanham Act: The generic (or nongeneric) character of a particular term depends on its meaning to consumers, i.e., do consumers in fact perceive the term as the name of a class or, instead, as a term capable of distinguishing among members of the class. Pp. 8–11. (2) The PTO’s policy concerns do not support a categorical rule against registration of \"generic.com\" terms. The PTO asserts that trademark protection for \"Booking.com\" would give the mark owner undue control over similar language that others should remain free to use. That concern attends any descriptive mark. Guarding against the anticompetitive effects the PTO identifies, several doctrines ensure that registration of \"Booking.com\" would not yield its holder a monopoly on the term \"booking.\" The PTO also doubts that owners of \"generic.com\" brands need trademark protection in addition to existing competitive advantages. Such advantages, however, do not inevitably disqualify a mark from federal registration. Finally, the PTO urges that Booking.com could seek remedies outside trademark law, but there is no basis to deny Booking.com the same benefits Congress accorded other marks qualifying as nongeneric. Pp. 11–14. 915 F. 3d 171, affirmed.", "opinion": "This case concerns eligibility for federal trademark registration. Respondent Booking.com, an enterprise that maintains a travel-reservation website by the same name, sought to register the mark \"Booking.com.\" Concluding that \"Booking.com\" is a generic name for online hotel-reservation services, the U. S. Patent and Trademark Office (PTO) refused registration. A generic name—the name of a class of products or services—is ineligible for federal trademark registration. The word \"booking,\" the parties do not dispute, is generic for hotel-reservation services. \"Booking.com\" must also be generic, the PTO maintains, under an encompassing rule the PTO currently urges us to adopt: The combination of a generic word and \".com\" is generic. In accord with the first- and second-instance judgments in this case, we reject the PTO’s sweeping rule. A term styled \"generic.com\" is a generic name for a class of goods or services only if the term has that meaning to consumers. Consumers, according to lower court determinations uncontested here by the PTO, do not perceive the term \"Booking.com\" to signify online hotel-reservation services as a class. In circumstances like those this case presents, a \"generic.com\" term is not generic and can be eligible for federal trademark registration. I A A trademark distinguishes one producer’s goods or services from another’s. Guarding a trademark against use by others, this Court has explained, \"secure[s] to the owner of the mark the goodwill\" of her business and \"protect[s] the ability of consumers to distinguish among competing producers.\" Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 198 (1985); see S. Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946) (trademark statutes aim to \"protect the public so it may be confident that, in purchasing a product bearing a particular trade-mark which it favorably knows, it will get the product which it asks for and wants to get\"). Trademark protection has roots in common law and equity. Matal v. Tam, 582 U. S. ___, ___ (2017) (slip op., at 2). Today, the Lanham Act, enacted in 1946, provides federal statutory protection for trademarks. 60 Stat. 427, as amended, 15 U. S. C. §1051 et seq. We have recognized that federal trademark protection, supplementing state law, \"supports the free flow of commerce\" and \"foster[s] competition.\" Matal, 582 U. S., at ___, ___–___ (slip op., at 3, 4–5) (internal quotation marks omitted). The Lanham Act not only arms trademark owners with federal claims for relief; importantly, it establishes a system of federal trademark registration. The owner of a mark on the principal register enjoys \"valuable benefits,\" including a presumption that the mark is valid. Iancu v. Brunetti, 588 U. S. ___, ___ (2019) (slip op., at 2); see §§1051, 1052. The supplemental register contains other product and service designations, some of which could one day gain eligibility for the principal register. See §1091. The supplemental register accords more modest benefits; notably, a listing on that register announces one’s use of the designation to others considering a similar mark. See 3 J. McCarthy, Trademarks and Unfair Competition §19:37 (5th ed. 2019) (hereinafter McCarthy). Even without federal registration, a mark may be eligible for protection against infringement under both the Lanham Act and other sources of law. See Matal, 582 U. S., at ___–___ (slip op., at 4–5). Prime among the conditions for registration, the mark must be one \"by which the goods of the applicant may be distinguished from the goods of others.\" §1052; see §1091(a) (supplemental register contains \"marks capable of distinguishing . . . goods or services\"). Distinctiveness is often expressed on an increasing scale: Word marks \"may be (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.\" Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 763, 768 (1992). The more distinctive the mark, the more readily it qualifies for the principal register. The most distinctive marks— those that are \"‘arbitrary’ (‘Camel’ cigarettes), ‘fanciful’ (‘Kodak’ film), or ‘suggestive’ (‘Tide’ laundry detergent)\"— may be placed on the principal register because they are \"inherently distinctive.\" Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U. S. 205, 210–211 (2000). \"Descriptive\" terms, in contrast, are not eligible for the principal register based on their inherent qualities alone. E.g., Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 718 F. 2d 327, 331 (CA9 1983) (\"Park ’N Fly\" airport parking is descriptive), rev’d on other grounds, 469 U. S. 189 (1985). The Lanham Act, \"liberaliz[ing] the common law,\" \"extended protection to descriptive marks.\" Qualitex Co. v. Jacobson Products Co., 514 U. S. 159, 171 (1995). But to be placed on the principal register, descriptive terms must achieve significance \"in the minds of the public\" as identifying the applicant’s goods or services—a quality called \"acquired distinctiveness\" or \"secondary meaning.\" Wal-Mart Stores, 529 U. S., at 211 (internal quotation marks omitted); see §1052(e), (f ). Without secondary meaning, descriptive terms may be eligible only for the supplemental register. §1091(a). At the lowest end of the distinctiveness scale is \"the generic name for the goods or services.\" §§1127, 1064(3), 1065(4). The name of the good itself (e.g., \"wine\") is incapable of \"distinguish[ing] [one producer’s goods] from the goods of others\" and is therefore ineligible for registration. §1052; see §1091(a). Indeed, generic terms are ordinarily ineligible for protection as trademarks at all. See Restatement (Third) of Unfair Competition §15, p. 142 (1993); Otokoyama Co. v. Wine of Japan Import, Inc., 175 F. 3d 266, 270 (CA2 1999) (\"[E]veryone may use [generic terms] to refer to the goods they designate.\"). B Booking.com is a digital travel company that provides hotel reservations and other services under the brand \"Booking.com,\" which is also the domain name of its website.1 Booking.com filed applications to register four marks in connection with travel-related services, each with different visual features but all containing the term \"Booking.com.\"2 Both a PTO examining attorney and the PTO’s Trademark Trial and Appeal Board concluded that the term \"Booking.com\" is generic for the services at issue and is therefore unregistrable. \"Booking,\" the Board observed, means making travel reservations, and \".com\" signifies a commercial website. The Board then ruled that \"customers would understand the term BOOKING.COM primarily to refer to an online reservation service for travel, tours, and lodgings.\" App. to Pet. for Cert. 164a, 176a. Alternatively, the Board held that even if \"Booking.com\" is descriptive, not generic, it is unregistrable because it lacks secondary meaning. Booking.com sought review in the U. S. District Court for the Eastern District of Virginia, invoking a mode of review that allows Booking.com to introduce evidence not presented to the agency. See §1071(b). Relying in significant part on Booking.com’s new evidence of consumer perception, the District Court concluded that \"Booking.com\"—unlike \"booking\"—is not generic. The \"consuming public,\" the court found, \"primarily understands that BOOKING.COM does not refer to a genus, rather it is descriptive of services involving ‘booking’ available at that domain name.\" Booking.com B.V. v. Matal, 278 F. Supp. 3d 891, 918 (2017). Having determined that \"Booking.com\" is descriptive, the District Court additionally found that the term has acquired secondary meaning as to hotel-reservation services. For those services, the District Court therefore concluded, Booking.com’s marks meet the distinctiveness requirement for registration. The PTO appealed only the District Court’s determination that \"Booking.com\" is not generic. Finding no error in the District Court’s assessment of how consumers perceive the term \"Booking.com,\" the Court of Appeals for the Fourth Circuit affirmed the court of first instance’s judgment. In so ruling, the appeals court rejected the PTO’s contention that the combination of \".com\" with a generic term like \"booking\" \"is necessarily generic.\" 915 F. 3d 171, 184 (2019). Dissenting in relevant part, Judge Wynn concluded that the District Court mistakenly presumed that \"generic.com\" terms are usually descriptive, not generic. We granted certiorari, 589 U. S. ___ (2019), and now affirm the Fourth Circuit’s decision. II Although the parties here disagree about the circumstances in which terms like \"Booking.com\" rank as generic, several guiding principles are common ground. First, a \"generic\" term names a \"class\" of goods or services, rather than any particular feature or exemplification of the class. Brief for Petitioners 4; Brief for Respondent 6; see §§1127, 1064(3), 1065(4) (referring to \"the generic name for the goods or services\"); Park ’N Fly, 469 U. S., at 194 (\"A generic term is one that refers to the genus of which the particular product is a species.\"). Second, for a compound term, the distinctiveness inquiry trains on the term’s meaning as a whole, not its parts in isolation. Reply Brief 9; Brief for Respondent 2; see Estate of P. D. Beckwith, Inc. v. Commissioner of Patents, 252 U. S. 538, 545–546 (1920). Third, the relevant meaning of a term is its meaning to consumers. Brief for Petitioners 43–44; Brief for Respondent 2; see Bayer Co. v. United Drug Co., 272 F. 505, 509 (SDNY 1921) (Hand, J.) (\"What do the buyers understand by the word for whose use the parties are contending?\"). Eligibility for registration, all agree, turns on the mark’s capacity to \"distinguis[h]\" goods \"in commerce.\" §1052. Evidencing the Lanham Act’s focus on consumer perception, the section governing cancellation of registration provides that \"[t]he primary significance of the registered mark to the relevant public . . . shall be the test for determining whether the registered mark has become the generic name of goods or services.\" §1064(3). Under these principles, whether \"Booking.com\" is generic turns on whether that term, taken as a whole, signifies to consumers the class of online hotel-reservation services. Thus, if \"Booking.com\" were generic, we might expect consumers to understand Travelocity—another such service—to be a \"Booking.com.\" We might similarly expect that a consumer, searching for a trusted source of online hotel-reservation services, could ask a frequent traveler to name her favorite \"Booking.com\" provider. Consumers do not in fact perceive the term \"Booking.com\" that way, the courts below determined. The PTO no longer disputes that determination. See Pet. for Cert. I; Brief for Petitioners 17–18 (contending only that a consumer-perception inquiry was unnecessary, not that the lower courts’ consumer-perception determination was wrong). That should resolve this case: Because \"Booking.com\" is not a generic name to consumers, it is not generic. III Opposing that conclusion, the PTO urges a nearly per se rule that would render \"Booking.com\" ineligible for registration regardless of specific evidence of consumer perception. In the PTO’s view, which the dissent embraces, when a generic term is combined with a generic top-level domain like \".com,\" the resulting combination is generic. In other words, every \"generic.com\" term is generic according to the PTO, absent exceptional circumstances.4 The PTO’s own past practice appears to reflect no such comprehensive rule. See, e.g., Trademark Registration No. 3,601,346 (\"ART.COM\" on principal register for, inter alia, \"[o]nline retail store services\" offering \"art prints, original art, [and] art reproductions\"); Trademark Registration No. 2,580,467 (\"DATING.COM\" on supplemental register for \"dating services\"). Existing registrations inconsistent with the rule the PTO now advances would be at risk of cancellation if the PTO’s current view were to prevail. See §1064(3). We decline to adopt a rule essentially excluding registration of \"generic.com\" marks. As explained below, we discern no support for the PTO’s current view in trademark law or policy. A The PTO urges that the exclusionary rule it advocates follows from a common-law principle, applied in Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598 (1888), that a generic corporate designation added to a generic term does not confer trademark eligibility. In Goodyear, a decision predating the Lanham Act, this Court held that \"Goodyear Rubber Company\" was not \"capable of exclusive appropriation.\" Id., at 602. Standing alone, the term \"Goodyear Rubber\" could not serve as a trademark because it referred, in those days, to \"well-known classes of goods produced by the process known as Goodyear’s invention.\" Ibid. \"[A]ddition of the word ‘Company’\" supplied no protectable meaning, the Court concluded, because adding \"Company\" \"only indicates that parties have formed an association or partnership to deal in such goods.\" Ibid. Permitting exclusive rights in \"Goodyear Rubber Company\" (or \"Wine Company, Cotton Company, or Grain Company\"), the Court explained, would tread on the right of all persons \"to deal in such articles, and to publish the fact to the world.\" Id., at 602–603. \"Generic.com,\" the PTO maintains, is like \"Generic Company\" and is therefore ineligible for trademark protection, let alone federal registration. According to the PTO, adding \".com\" to a generic term—like adding \"Company\"—\"conveys no additional meaning that would distinguish [one provider’s] services from those of other providers.\" Brief for Petitioners 44. The dissent endorses that proposition: \"Generic.com\" conveys that the generic good or service is offered online \"and nothing more.\" Post, at 1. That premise is faulty. A \"generic.com\" term might also convey to consumers a source-identifying characteristic: an association with a particular website. As the PTO and the dissent elsewhere acknowledge, only one entity can occupy a particular Internet domain name at a time, so \"[a] consumer who is familiar with that aspect of the domain-name system can infer that BOOKING.COM refers to some specific entity.\" Brief for Petitioners 40. See also Tr. of Oral Arg. 5 (\"Because domain names are one of a kind, a significant portion of the public will always understand a generic ‘.com’ term to refer to a specific business . . . .\"); post, at 7 (the \"exclusivity\" of \"generic.com\" terms sets them apart from terms like \"Wine, Inc.\" and \"The Wine Company\"). Thus, consumers could understand a given \"generic.com\" term to describe the corresponding website or to identify the website’s proprietor. We therefore resist the PTO’s position that \"generic.com\" terms are capable of signifying only an entire class of online goods or services and, hence, are categorically incapable of identifying a source.5 The PTO’s reliance on Goodyear is flawed in another respect. The PTO understands Goodyear to hold that \"Generic Company\" terms \"are ineligible for trademark protection as a matter of law\"—regardless of how \"consumers would understand\" the term. Brief for Petitioners 38. But, as noted, whether a term is generic depends on its meaning to consumers. Supra, at 6. That bedrock principle of the Lanham Act is incompatible with an unyielding legal rule that entirely disregards consumer perception. Instead, Goodyear reflects a more modest principle harmonious with Congress’ subsequent enactment: A compound of generic elements is generic if the combination yields no additional meaning to consumers capable of distinguishing the goods or services. The PTO also invokes the oft-repeated principle that \"no matter how much money and effort the user of a generic term has poured into promoting the sale of its merchandise. . . , it cannot deprive competing manufacturers of the product of the right to call an article by its name.\" Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F. 2d 4, 9 (CA2 1976). That principle presupposes that a generic term is at issue. But the PTO’s only legal basis for deeming \"generic.com\" terms generic is its mistaken reliance on Goodyear. While we reject the rule proffered by the PTO that \"generic.com\" terms are generic names, we do not embrace a rule automatically classifying such terms as nongeneric. Whether any given \"generic.com\" term is generic, we hold, depends on whether consumers in fact perceive that term as the name of a class or, instead, as a term capable of distinguishing among members of the class.6 B The PTO, echoed by the dissent, post, at 10–12, objects that protecting \"generic.com\" terms as trademarks would disserve trademark law’s animating policies. We disagree. The PTO’s principal concern is that trademark protection for a term like \"Booking.com\" would hinder competitors. But the PTO does not assert that others seeking to offer online hotel-reservation services need to call their services \"Booking.com.\" Rather, the PTO fears that trademark protection for \"Booking.com\" could exclude or inhibit competitors from using the term \"booking\" or adopting domain names like \"ebooking.com\" or \"hotel-booking.com.\" Brief for Petitioners 27–28. The PTO’s objection, therefore, is not to exclusive use of \"Booking.com\" as a mark, but to undue control over similar language, i.e., \"booking,\" that others should remain free to use. That concern attends any descriptive mark. Responsive to it, trademark law hems in the scope of such marks short of denying trademark protection altogether. Notably, a competitor’s use does not infringe a mark unless it is likely to confuse consumers. See §§1114(1), 1125(a)(1)(A); 4 McCarthy §23:1.50 (collecting state law). In assessing the likelihood of confusion, courts consider the mark’s distinctiveness: \"The weaker a mark, the fewer are the junior uses that will trigger a likelihood of consumer confusion.\" 2 id., §11:76. When a mark incorporates generic or highly descriptive components, consumers are less likely to think that other uses of the common element emanate from the mark’s owner. Ibid. Similarly, \"[i]n a ‘crowded’ field of lookalike marks\" (e.g., hotel names including the word \"grand\"), consumers \"may have learned to carefully pick out\" one mark from another. Id., §11:85. And even where some consumer confusion exists, the doctrine known as classic fair use, see id., §11:45, protects from liability anyone who uses a descriptive term, \"fairly and in good faith\" and \"otherwise than as a mark,\" merely to describe her own goods. 15 U. S. C. §1115(b)(4); see KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U. S. 111, 122–123 (2004) These doctrines guard against the anticompetitive effects the PTO identifies, ensuring that registration of \"Booking.com\" would not yield its holder a monopoly on the term \"booking.\" Booking.com concedes that \"Booking.com\" would be a \"weak\" mark. Tr. of Oral Arg. 66. See also id., at 42–43, 55. The mark is descriptive, Booking.com recognizes, making it \"harder . . . to show a likelihood of confusion.\" Id., at 43. Furthermore, because its mark is one of many \"similarly worded marks,\" Booking.com accepts that close variations are unlikely to infringe. Id., at 66. And Booking.com acknowledges that federal registration of \"Booking.com\" would not prevent competitors from using the word \"booking\" to describe their own services. Id., at 55. The PTO also doubts that owners of \"generic.com\" brands need trademark protection in addition to existing competitive advantages. Booking.com, the PTO argues, has already seized a domain name that no other website can use and is easy for consumers to find. Consumers might enter \"the word ‘booking’ in a search engine,\" the PTO observes, or \"proceed directly to ‘booking.com’ in the expectation that [online hotel-booking] services will be offered at that address.\" Brief for Petitioners 32. Those competitive advantages, however, do not inevitably disqualify a mark from federal registration. All descriptive marks are intuitively linked to the product or service and thus might be easy for consumers to find using a search engine or telephone directory. The Lanham Act permits registration nonetheless. See §1052(e), (f ). And the PTO fails to explain how the exclusive connection between a domain name and its owner makes the domain name a generic term all should be free to use. That connection makes trademark protection more appropriate, not less. See supra, at 9. Finally, even if \"Booking.com\" is generic, the PTO urges, unfair-competition law could prevent others from passing off their services as Booking.com’s. Cf. Genesee Brewing Co. v. Stroh Brewing Co., 124 F. 3d 137, 149 (CA2 1997); Blinded Veterans Assn. v. Blinded Am. Veterans Foundation, 872 F. 2d 1035, 1042–1048 (CADC 1989). But federal trademark registration would offer Booking.com greater protection. See, e.g., Genesee Brewing, 124 F. 3d, at 151 (unfair-competition law would oblige competitor at most to \"make more of an effort\" to reduce confusion, not to cease marketing its product using the disputed term); Matal, 582 U. S., at ___ (slip op., at 5) (federal registration confers valuable benefits); Brief for Respondent 26 (expressing intention to seek protections available to trademark owners under the Anticybersquatting Consumer Protection Act, 15 U. S. C. §1125(d)); Brief for Coalition of .Com Brand Owners as Amici Curiae 14–19 (trademark rights allow mark owners to stop domain-name abuse through private dispute resolution without resorting to litigation). We have no cause to deny Booking.com the same benefits Congress accorded other marks qualifying as nongeneric. The PTO challenges the judgment below on a sole ground: It urges that, as a rule, combining a generic term with \".com\" yields a generic composite. For the above-stated reasons, we decline a rule of that order, one that would largely disallow registration of \"generic.com\" terms and open the door to cancellation of scores of currently registered marks. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit regarding eligibility for trademark registration is Affirmed."},
{"docket_number": "18-1195", "syllabus": "The Montana Legislature established a program that grants tax credits to those who donate to organizations that award scholarships for private school tuition. To reconcile the program with a provision of the Montana Constitution that bars government aid to any school \"controlled in whole or in part by any church, sect, or denomination,\" Art. X, §6(1), the Montana Department of Revenue promulgated \"Rule 1,\" which prohibited families from using the scholarships at religious schools. Three mothers who were blocked by Rule 1 from using scholarship funds for their children’s tuition at Stillwater Christian School sued the Department in state court, alleging that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen. The trial court enjoined Rule 1. Reversing, the Montana Supreme Court held that the program, unmodified by Rule 1, aided religious schools in violation of the Montana Constitution’s no-aid provision. The Court further held that the violation required invalidating the entire program. Held: The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution. Pp. 6–22. (a) The Free Exercise Clause \"protects religious observers against unequal treatment\" and against \"laws that impose special disabilities on the basis of religious status.\" Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___, ___. In Trinity Lutheran, this Court held that disqualifying otherwise eligible recipients from a public benefit \"solely because of their religious character\" imposes \"a penalty on the free exercise of religion that triggers the most exacting scrutiny.\" Id., at ___. Here, the application of Montana’s no-aid provision excludes religious schools from public benefits solely because of religious status. As a result, strict scrutiny applies. Pp. 6–12. (b) Contrary to the Department’s contention, this case is not governed by Locke v. Davey, 540 U. S. 712. The plaintiff in Locke was denied a scholarship \"because of what he proposed to do—use the funds to prepare for the ministry,\" an essentially religious endeavor. Trinity Lutheran, 582 U. S., at ___. By contrast, Montana’s no-aid provision does not zero in on any essentially religious course of instruction but rather bars aid to a religious school \"simply because of what it is\"— a religious school. Id., at ___. Locke also invoked a \"historic and substantial\" state interest in not funding the training of clergy, 540 U. S., at 725, but no comparable tradition supports Montana’s decision to disqualify religious schools from government aid. Pp. 12–16. (c) The proposed alternative approach involving a flexible case-bycase analysis is inconsistent with Trinity Lutheran. The protections of the Free Exercise Clause do not depend on a varying case-by-case analysis regarding whether discrimination against religious adherents would serve ill-defined interests. Pp. 16–18. (d) To satisfy strict scrutiny, government action \"must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.\" Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546. Montana’s interest in creating greater separation of church and State than the Federal Constitution requires \"cannot qualify as compelling\" in the face of the infringement of free exercise here. Trinity Lutheran, 582 U. S., at ___. The Department’s argument that the no-aid provision actually promotes religious freedom is unavailing because an infringement of First Amendment rights cannot be justified by a State’s alternative view that the infringement advances religious liberty. The Department’s argument is especially unconvincing because the infringement here broadly burdens not only religious schools but also the families whose children attend them. The Department suggests that the no-aid provision safeguards public education by ensuring that government support is not diverted to private schools, but that interest does not justify a no-aid provision that requires only religious private schools to bear its weight. Pp. 18–20. (e) Because the Free Exercise Clause barred the application of the no-aid provision here, the Montana Supreme Court had no authority to invalidate the program on the basis of that provision. The Department argues that the invalidation of the entire program prevented a free exercise violation, but the Department overlooks the Montana Supreme Court’s threshold error of federal law. Had the Montana Supreme Court recognized that the application of the no-aid provision was barred by the Free Exercise Clause, the Court would have had no basis for invalidating the program. The Court was obligated to disregard the no-aid provision and decide this case consistent with the Federal Constitution. Pp. 20–22. 393 Mont. 446, 435 P. 3d 603, reversed and remanded.", "opinion": "The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Court relied on the \"no-aid\" provision of the State Constitution, which prohibits any aid to a school controlled by a \"church, sect, or denomination.\" The question presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision. In 2015, the Montana Legislature sought \"to provide parental and student choice in education\" by enacting a scholarship program for students attending private schools. 2015 Mont. Laws p. 2168, §7. The program grants a tax credit of up to $150 to any taxpayer who donates to a participating \"student scholarship organization.\" Mont. Code Ann. §§15–30–3103(1), –3111(1) (2019). The scholarship organizations then use the donations to award scholarships to children for tuition at a private school. §§15–30– 3102(7)(a), –3103(1)(c).1 So far only one scholarship organization, Big Sky Scholarships, has participated in the program. Big Sky focuses on providing scholarships to families who face financial hardship or have children with disabilities. Scholarship organizations like Big Sky must, among other requirements, maintain an application process for awarding the scholarships; use at least 90% of all donations on scholarship awards; and comply with state reporting and monitoring requirements. §§15–30–3103(1), –3105(1), –3113(1). A family whose child is awarded a scholarship under the program may use it at any \"qualified education provider\"— that is, any private school that meets certain accreditation, testing, and safety requirements. See §15–30–3102(7). Virtually every private school in Montana qualifies. Upon receiving a scholarship, the family designates its school of choice, and the scholarship organization sends the scholarship funds directly to the school. §15–30–3104(1). Neither the scholarship organization nor its donors can restrict awards to particular types of schools. See §§15–30– 3103(1)(b), –3111(1). The Montana Legislature allotted $3 million annually to fund the tax credits, beginning in 2016. §15–30–3111(5)(a). If the annual allotment is exhausted, it increases by 10% the following year. Ibid. The program is slated to expire in 2023. 2015 Mont. Laws p. 2186, §33. The Montana Legislature also directed that the program be administered in accordance with Article X, section 6, of the Montana Constitution, which contains a \"no-aid\" provision barring government aid to sectarian schools. See Mont. Code Ann. §15–30–3101. In full, that provision states: \"Aid prohibited to sectarian schools. . . . The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.\" Mont. Const., Art. X, §6(1). Shortly after the scholarship program was created, the Montana Department of Revenue promulgated \"Rule 1,\" over the objection of the Montana Attorney General. That administrative rule prohibited families from using scholarships at religious schools. Mont. Admin. Rule §42.4.802(1)(a) (2015). It did so by changing the definition of \"qualified education provider\" to exclude any school \"owned or controlled in whole or in part by any church, religious sect, or denomination.\" Ibid. The Department explained that the Rule was needed to reconcile the scholarship program with the no-aid provision of the Montana Constitution. The Montana Attorney General disagreed. In a letter to the Department, he advised that the Montana Constitution did not require excluding religious schools from the program, and if it did, it would \"very likely\" violate the United States Constitution by discriminating against the schools and their students. See Complaint in No. DV–15–1152A (Dist. Ct. Flathead Cty.), Exh. 3, pp. 2, 5–6. The Attorney General is not representing the Department in this case. This suit was brought by three mothers whose children attend Stillwater Christian School in northwestern Montana. Stillwater is a private Christian school that meets the statutory criteria for \"qualified education providers.\" It serves students in prekindergarten through 12th grade, and petitioners chose the school in large part because it \"teaches the same Christian values that [they] teach at home.\" App. to Pet. for Cert. 152; see id., at 138, 167. The child of one petitioner has already received scholarships from Big Sky, and the other petitioners’ children are eligible for scholarships and planned to apply. While in effect, however, Rule 1 blocked petitioners from using scholarship funds for tuition at Stillwater. To overcome that obstacle, petitioners sued the Department of Revenue in Montana state court. Petitioners claimed that Rule 1 conflicted with the statute that created the scholarship program and could not be justified on the ground that it was compelled by the Montana Constitution’s no-aid provision. Petitioners further alleged that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen for their children. The trial court enjoined Rule 1, holding that it was based on a mistake of law. The court explained that the Rule was not required by the no-aid provision, because that provision prohibits only \"appropriations\" that aid religious schools, \"not tax credits.\" Id., at 94. The injunctive relief freed Big Sky to award scholarships to students regardless of whether they attended a religious or secular school. For the school year beginning in fall 2017, Big Sky received 59 applications and ultimately awarded 44 scholarships of $500 each. The next year, Big Sky received 90 applications and awarded 54 scholarships of $500 each. Several families, most with incomes of $30,000 or less, used the scholarships to send their children to Stillwater Christian. In December 2018, the Montana Supreme Court reversed the trial court. 393 Mont. 446, 435 P. 3d 603. The Court first addressed the scholarship program unmodified by Rule 1, holding that the program aided religious schools in violation of the no-aid provision of the Montana Constitution. In the Court’s view, the no-aid provision \"broadly and strictly prohibits aid to sectarian schools.\" Id., at 459, 435 P. 3d, at 609. The scholarship program provided such aid by using tax credits to \"subsidize tuition payments\" at private schools that are \"religiously affiliated\" or \"controlled in whole or in part by churches.\" Id., at 464–467, 435 P. 3d, at 612–613. In that way, the scholarship program flouted the State Constitution’s \"guarantee to all Montanans that their government will not use state funds to aid religious schools.\" Id., at 467, 435 P. 3d, at 614. The Montana Supreme Court went on to hold that the violation of the no-aid provision required invalidating the entire scholarship program. The Court explained that the program provided \"no mechanism\" for preventing aid from flowing to religious schools, and therefore the scholarship program could not \"under any circumstance\" be construed as consistent with the no-aid provision. Id., at 466–468, 435 P. 3d, at 613–614. As a result, the tax credit is no longer available to support scholarships at either religious or secular private schools. The Montana Supreme Court acknowledged that \"an overly-broad\" application of the no-aid provision \"could implicate free exercise concerns\" and that \"there may be a case\" where \"prohibiting the aid would violate the Free Exercise Clause.\" Id., at 468, 435 P. 3d, at 614. But, the Court concluded, \"this is not one of those cases.\" Ibid. Finally, the Court agreed with petitioners that the Department had exceeded its authority in promulgating Rule 1. The Court explained that the statute creating the scholarship program had broadly defined qualifying schools to include all private schools, including religious ones, and the Department lacked authority to \"transform\" that definition with an administrative rule. Id., at 468–469, 435 P. 3d, at 614–615. Several Justices wrote separately. All agreed that Rule 1 was invalid, but they expressed differing views on whether the scholarship program was consistent with the Montana and United States Constitutions. Justice Gustafson’s concurrence argued that the program violated not only Montana’s no-aid provision but also the Federal Establishment and Free Exercise Clauses. Id., at 475–479, 435 P. 3d, at 619–621. Justice Sandefur echoed the majority’s conclusion that applying the no-aid provision was consistent with the Free Exercise Clause, and he dismissed the \"modern jurisprudence\" of that Clause as \"unnecessarily complicate[d]\" due to \"increasingly value-driven hairsplitting and overstretching.\" Id., at 482–484, 435 P. 3d, at 623–624. Two Justices dissented. Justice Rice would have held that the scholarship program was permissible under the no aid provision. He criticized the majority for invalidating the program \"sua sponte,\" contending that no party had challenged it under the State Constitution. Id., at 495, 435 P. 3d, at 631. Justice Baker also would have upheld the program. In her view, the no-aid provision did not bar the use of scholarships at religious schools, and free exercise concerns could arise under the Federal Constitution if it did. Id., at 493–494, 435 P. 3d, at 630. We granted certiorari. 588 U. S. ___ (2019). II A The Religion Clauses of the First Amendment provide that \"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.\" We have recognized a \"‘play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause compels.\" Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___, ___ (2017) (slip op., at 6) (quoting Locke v. Davey, 540 U. S. 712, 718 (2004)). Here, the parties do not dispute that the scholarship program is permissible under the Establishment Clause. Nor could they. We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs. See, e.g., Locke, 540 U. S., at 719; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 839 (1995). See also Trinity Lutheran, 582 U. S., at ___ (slip op., at 6) (noting the parties’ agreement that the Establishment Clause was not violated by including churches in a playground resurfacing program). Any Establishment Clause objection to the scholarship program here is particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools. See Locke, 540 U. S., at 719; Zelman v. Simmons-Harris, 536 U. S. 639, 649–653 (2002). The Montana Supreme Court, however, held as a matter of state law that even such indirect government support qualified as \"aid\" prohibited under the Montana Constitution. The question for this Court is whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from the scholarship program. For purposes of answering that question, we accept the Montana Supreme Court’s interpretation of state law—including its determination that the scholarship program provided impermissible \"aid\" within the meaning of the Montana Constitution—and we assess whether excluding religious schools and affected families from that program was consistent with the Federal Constitution. The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, \"protects religious observers against unequal treatment\" and against \"laws that impose special disabilities on the basis of religious status.\" Trinity Lutheran, 582 U. S., at ___, ___ (slip op., at 6, 9) (internal quotation marks and alterations omitted); see Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). Those \"basic principle[s]\" have long guided this Court. Trinity Lutheran, 582 U. S., at ___–___ (slip op., at 6–9). See, e.g., Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947) (a State \"cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation\"); Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 449 (1988) (the Free Exercise Clause protects against laws that \"penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens\"). Most recently, Trinity Lutheran distilled these and other decisions to the same effect into the \"unremarkable\" conclusion that disqualifying otherwise eligible recipients from a public benefit \"solely because of their religious character\" imposes \"a penalty on the free exercise of religion that triggers the most exacting scrutiny.\" 582 U. S., at ___–___ (slip op., at 9–10). In Trinity Lutheran, Missouri provided grants to help nonprofit organizations pay for playground resurfacing, but a state policy disqualified any organization \"owned or controlled by a church, sect, or other religious entity.\" Id., at ___ (slip op., at 2). Because of that policy, an otherwise eligible church-owned preschool was denied a grant to resurface its playground. Missouri’s policy discriminated against the Church \"simply because of what it is—a church,\" and so the policy was subject to the \"strictest scrutiny,\" which it failed. Id., at ___–___ (slip op., at 11– 15). We acknowledged that the State had not \"criminalized\" the way in which the Church worshipped or \"told the Church that it cannot subscribe to a certain view of the Gospel.\" Id., at ___ (slip op., at 11). But the State’s discriminatory policy was \"odious to our Constitution all the same.\" Id., at ___ (slip op., at 15). Here too Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. This is apparent from the plain text. The provision bars aid to any school \"controlled in whole or in part by any church, sect, or denomination.\" Mont. Const., Art. X, §6(1). The provision’s title—\"Aid prohibited to sectarian schools\"—confirms that the provision singles out schools based on their religious character. Ibid. And the Montana Supreme Court explained that the provision forbids aid to any school that is \"sectarian,\" \"religiously affiliated,\" or \"controlled in whole or in part by churches.\" 393 Mont., at 464–467, 435 P. 3d, at 612–613. The provision plainly excludes schools from government aid solely because of religious status. See Trinity Lutheran, 582 U. S., at ___–___ (slip op., at 9–10). The Department counters that Trinity Lutheran does not govern here because the no-aid provision applies not because of the religious character of the recipients, but because of how the funds would be used—for \"religious education.\" Brief for Respondents 38. In Trinity Lutheran, a majority of the Court concluded that the Missouri policy violated the Free Exercise Clause because it discriminated on the basis of religious status. A plurality declined to address discrimination with respect to \"religious uses of funding or other forms of discrimination.\" 582 U. S., at ___, n. 3 (slip op., at 14, n. 3). The plurality saw no need to consider such concerns because Missouri had expressly discriminated \"based on religious identity,\" ibid., which was enough to invalidate the state policy without addressing how government funds were used. This case also turns expressly on religious status and not religious use. The Montana Supreme Court applied the noaid provision solely by reference to religious status. The Court repeatedly explained that the no-aid provision bars aid to \"schools controlled in whole or in part by churches,\" \"sectarian schools,\" and \"religiously-affiliated schools.\" 393 Mont., at 463–467, 435 P. 3d, at 611–613. Applying this provision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would benefit from the program were \"religiously affiliated\" and \"controlled by churches,\" and the Court ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding \"schools controlled by churches.\" Id., at 466–467, 435 P. 3d, at 613–614. The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran, which excluded organizations \"owned or controlled by a church, sect, or other religious entity.\" 582 U. S., at ___ (slip op., at 2). The Department points to some language in the decision below indicating that the no-aid provision has the goal or effect of ensuring that government aid does not end up being used for \"sectarian education\" or \"religious education.\" 393 Mont., at 460, 466–467, 435 P. 3d, at 609, 613–614. The Department also contrasts what it characterizes as the \"completely non-religious\" benefit of playground resurfacing in Trinity Lutheran with the unrestricted tuition aid at issue here. Tr. of Oral Arg. 31. General school aid, the Department stresses, could be used for religious ends by some recipients, particularly schools that believe faith should \"permeate[]\" everything they do. Brief for Respondents 39 (quoting State ex rel. Chambers v. School Dist. No. 10, 155 Mont. 422, 438, 472 P. 2d 1013, 1021 (1970)). See also post, at 8, 13 (BREYER, J., dissenting). Regardless, those considerations were not the Montana Supreme Court’s basis for applying the no-aid provision to exclude religious schools; that hinged solely on religious status. Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses. Undeterred by Trinity Lutheran, the Montana Supreme Court applied the no-aid provision to hold that religious schools could not benefit from the scholarship program. 393 Mont., at 464–468, 435 P. 3d, at 612–614. So applied, the provision \"impose[s] special disabilities on the basis of religious status\" and \"condition[s] the availability of benefits upon a recipient’s willingness to surrender [its] religiously impelled status.\" Trinity Lutheran, 582 U. S., at ___–___ (slip op., at 9–10) (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993), and McDaniel v. Paty, 435 U. S. 618, 626 (1978) (plurality opinion) (alterations omitted)). To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation. Placing such a condition on benefits or privileges \"inevitably deters or discourages the exercise of First Amendment rights.\" Trinity Lutheran, 582 U. S., at ___ (slip op., at 11) (quoting Sherbert v. Verner, 374 U. S. 398, 405 (1963) (alterations omitted)). The Free Exercise Clause protects against even \"indirect coercion,\" and a State \"punishe[s] the free exercise of religion\" by disqualifying the religious from government aid as Montana did here. Trinity Lutheran, 582 U. S., at ___–___ (slip op., at 10–11) (internal quotation marks omitted). Such status-based discrimination is subject to \"the strictest scrutiny.\" Id., at ___ (slip op., at 11). None of this is meant to suggest that we agree with the Department, Brief for Respondents 36–40, that some lesser degree of scrutiny applies to discrimination against religious uses of government aid. See Lukumi, 508 U. S., at 546 (striking down law designed to ban religious practice involving alleged animal cruelty, explaining that a law \"target[ing] religious conduct for distinctive treatment or advanc[ing] legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases\"). Some Members of the Court, moreover, have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status. See Trinity Lutheran, 582 U. S., at ___–___ (slip op., at 1–2) (GORSUCH, J., joined by THOMAS, J., concurring in part) (citing, e.g., Lukumi, 508 U. S. 520, and Thomas v. Review Bd. of Ind. Employment Security Div., 450 U. S. 707 (1981)). We acknowledge the point but need not examine it here. It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana’s no-aid provision discriminates based on religious status. B Seeking to avoid Trinity Lutheran, the Department contends that this case is instead governed by Locke v. Davey, 540 U. S. 712 (2004). See also post, at 5 (BREYER, J., dissenting); post, at 9 (SOTOMAYOR, J., dissenting). Locke also involved a scholarship program. The State of Washington provided scholarships paid out of the State’s general fund to help students pursuing postsecondary education. The scholarships could be used at accredited religious and nonreligious schools alike, but Washington prohibited students from using the scholarships to pursue devotional theology degrees, which prepared students for a calling as clergy. This prohibition prevented Davey from using his scholarship to obtain a degree that would have enabled him to become a pastor. We held that Washington had not violated the Free Exercise Clause. Locke differs from this case in two critical ways. First, Locke explained that Washington had \"merely chosen not to fund a distinct category of instruction\": the \"essentially religious endeavor\" of training a minister \"to lead a congregation.\" Id., at 721. Thus, Davey \"was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry.\" Trinity Lutheran, 582 U. S., at ___ (slip op., at 12). Apart from that narrow restriction, Washington’s program allowed scholarships to be used at \"pervasively religious schools\" that incorporated religious instruction throughout their classes. Locke, 540 U. S., at 724–725. By contrast, Montana’s Constitution does not zero in on any particular \"essentially religious\" course of instruction at a religious school. Rather, as we have explained, the no-aid provision bars all aid to a religious school \"simply because of what it is,\" putting the school to a choice between being religious or receiving government benefits. Trinity Lutheran, 582 U. S., at ___ (slip op., at 12). At the same time, the provision puts families to a choice between sending their children to a religious school or receiving such benefits. Second, Locke invoked a \"historic and substantial\" state interest in not funding the training of clergy, 540 U. S., at 725, explaining that \"opposition to . . . funding ‘to support church leaders’ lay at the historic core of the Religion Clauses,\" Trinity Lutheran, 582 U. S., at ___ (slip op., at 13) (quoting Locke, 540 U. S., at 722). As evidence of that tradition, the Court in Locke emphasized that the propriety of state-supported clergy was a central subject of founding-era debates, and that most state constitutions from that era prohibited the expenditure of tax dollars to support the clergy. See id., at 722–723. But no comparable \"historic and substantial\" tradition supports Montana’s decision to disqualify religious schools from government aid. In the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones. \"Far from prohibiting such support, the early state constitutions and statutes actively encouraged this policy.\" L. Jorgenson, The State and the Non-Public School, 1825–1925, p. 4 (1987); e.g., R. Gabel, Public Funds for Church and Private Schools 210, 217–218, 221, 241–243 (1937); C. Kaestle, Pillars of the Republic: Common Schools and American Society, 1760– 1860, pp. 166–167 (1983). Local governments provided grants to private schools, including religious ones, for the education of the poor. M. McConnell, et al., Religion and the Constitution 318–319 (4th ed. 2016). Even States with bans on government-supported clergy, such as New Jersey, Pennsylvania, and Georgia, provided various forms of aid to religious schools. See Kaestle, supra, at 166–167; Gabel, supra, at 215–218, 241–245, 372–374; cf. Locke, 540 U. S., at 723. Early federal aid (often land grants) went to religious schools. McConnell, supra, at 319. Congress provided support to denominational schools in the District of Columbia until 1848, ibid., and Congress paid churches to run schools for American Indians through the end of the 19th century, see Quick Bear v. Leupp, 210 U. S. 50, 78 (1908); Gabel, supra, at 521–523. After the Civil War, Congress spent large sums on education for emancipated freedmen, often by supporting denominational schools in the South through the Freedmen’s Bureau. McConnell, supra, at 323. The Department argues that a tradition against state support for religious schools arose in the second half of the 19th century, as more than 30 States—including Montana—adopted no-aid provisions. See Brief for Respondents 40–42 and App. D. Such a development, of course, cannot by itself establish an early American tradition. JUSTICE SOTOMAYOR questions our reliance on aid provided during the same era by the Freedmen’s Bureau, post, at 10 (dissenting opinion), but we see no inconsistency in recognizing that such evidence may reinforce an early practice but cannot create one. In addition, many of the no-aid provisions belong to a more checkered tradition shared with the Blaine Amendment of the 1870s. That proposal—which Congress nearly passed—would have added to the Federal Constitution a provision similar to the state no-aid provisions, prohibiting States from aiding \"sectarian\" schools. See Mitchell v. Helms, 530 U. S. 793, 828 (2000) (plurality opinion). \"[I]t was an open secret that ‘sectarian’ was code for ‘Catholic.’\" Ibid.; see Jorgenson, supra, at 70. The Blaine Amendment was \"born of bigotry\" and \"arose at a time of pervasive hostility to the Catholic Church and to Catholics in general\"; many of its state counterparts have a similarly \"shameful pedigree.\" Mitchell, 530 U. S., at 828–829 (plurality opinion); see Jorgenson, supra, at 69–70, 216; Jeffries & Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 301–305 (2001). The no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the Free Exercise Clause. The Department argues that several States have rejected referendums to overturn or limit their no-aid provisions, and that Montana even re-adopted its own in the 1970s, for reasons unrelated to anti-Catholic bigotry. See Brief for Respondents 20, 42. But, on the other side of the ledger, many States today—including those with no-aid provisions—provide support to religious schools through vouchers, scholarships, tax credits, and other measures. See Brief for Oklahoma et al. as Amici Curiae 29–31, 33–35; Brief for Petitioners 5. According to petitioners, 20 of 37 States with no-aid provisions allow religious options in publicly funded scholarship programs, and almost all allow religious options in tax credit programs. Reply Brief 22, n. 9. All to say, we agree with the Department that the historical record is \"complex.\" Brief for Respondents 41. And it is true that governments over time have taken a variety of approaches to religious schools. But it is clear that there is no \"historic and substantial\" tradition against aiding such schools comparable to the tradition against state-supported clergy invoked by Locke. C Two dissenters would chart new courses. JUSTICE SOTOMAYOR would grant the government \"some room\" to \"single . . . out\" religious entities \"for exclusion,\" based on what she views as \"the interests embodied in the Religion Clauses.\" Post, at 8, 9 (quoting Trinity Lutheran, 582 U. S., at ___, ___ (SOTOMAYOR, J., dissenting) (slip op., at 8, 9)). JUSTICE BREYER, building on his solo opinion in Trinity Lutheran, would adopt a \"flexible, context-specific approach\" that \"may well vary\" from case to case. Post, at 14, 16; see Trinity Lutheran, 582 U. S., at ___ (BREYER, J., concurring in judgment). As best we can tell, courts applying this approach would contemplate the particular benefit and restriction at issue and discern their relationship to religion and society, taking into account \"context and consequences measured in light of [the] purposes\" of the Religion Clauses. Post, at 16–17, 19 (quoting Van Orden v. Perry, 545 U. S. 677, 700 (2005) (BREYER, J., concurring in judgment)). What is clear is that JUSTICE BREYER would afford much freer rein to judges than our current regime, arguing that \"there is ‘no test-related substitute for the exercise of legal judgment.’ \" Post, at 19 (quoting Van Orden, 545 U. S., at 700 (opinion of BREYER, J.)). The simplest response is that these dissents follow from prior separate writings, not from the Court’s decision in Trinity Lutheran or the decades of precedent on which it relied. These precedents have \"repeatedly confirmed\" the straightforward rule that we apply today: When otherwise eligible recipients are disqualified from a public benefit \"solely because of their religious character,\" we must apply strict scrutiny. Trinity Lutheran, 582 U. S., at ___–___ (slip op., at 6–10). This rule against express religious discrimination is no \"doctrinal innovation.\" Post, at 13 (opinion of BREYER, J.). Far from it. As Trinity Lutheran explained, the rule is \"unremarkable in light of our prior decisions.\" 582 U. S., at ___ (slip op., at 10). For innovation, one must look to the dissents. Their \"room[y]\" or \"flexible\" approaches to discrimination against religious organizations and observers would mark a significant departure from our free exercise precedents. The protections of the Free Exercise Clause do not depend on a \"judgment-by-judgment analysis\" regarding whether discrimination against religious adherents would somehow serve ill-defined interests. Cf. Medellín v. Texas, 552 U. S. 491, 514 (2008). D Because the Montana Supreme Court applied the no-aid provision to discriminate against schools and parents based on the religious character of the school, the \"strictest scrutiny\" is required. Supra, at 9, 12 (quoting Trinity Lutheran, 582 U. S., at ___ (slip op., at 11)). That \"stringent standard,\" id., at ___ (slip op., at 14), is not \"watered down but really means what it says,\" Lukumi, 508 U. S., at 546 (internal quotation marks and alterations omitted). To satisfy it, government action \"must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.\" Ibid. (quoting McDaniel, 435 U. S., at 628). The Montana Supreme Court asserted that the no-aid provision serves Montana’s interest in separating church and State \"more fiercely\" than the Federal Constitution. 393 Mont., at 467, 435 P. 3d, at 614. But \"that interest cannot qualify as compelling\" in the face of the infringement of free exercise here. Trinity Lutheran, 582 U. S., at ___ (slip op., at 14). A State’s interest \"in achieving greater separation of church and State than is already ensured under the Establishment Clause . . . is limited by the Free Exercise Clause.\" Ibid. (quoting Widmar v. Vincent, 454 U. S. 263, 276 (1981)). The Department, for its part, asserts that the no-aid provision actually promotes religious freedom. In the Department’s view, the no-aid provision protects the religious liberty of taxpayers by ensuring that their taxes are not directed to religious organizations, and it safeguards the freedom of religious organizations by keeping the government out of their operations. See Brief for Respondents 17– 23. An infringement of First Amendment rights, however, cannot be justified by a State’s alternative view that the infringement advances religious liberty. Our federal system prizes state experimentation, but not \"state experimentation in the suppression of free speech,\" and the same goes for the free exercise of religion. Boy Scouts of America v. Dale, 530 U. S. 640, 660 (2000). Furthermore, we do not see how the no-aid provision promotes religious freedom. As noted, this Court has repeatedly upheld government programs that spend taxpayer funds on equal aid to religious observers and organizations, particularly when the link between government and religion is attenuated by private choices. A school, concerned about government involvement with its religious activities, might reasonably decide for itself not to participate in a government program. But we doubt that the school’s liberty is enhanced by eliminating any option to participate in the first place. The Department’s argument is especially unconvincing because the infringement of religious liberty here broadly affects both religious schools and adherents. Montana’s noaid provision imposes a categorical ban—\"broadly and strictly\" prohibiting \"any type of aid\" to religious schools. 393 Mont., at 462–463, 435 P. 3d, at 611. This prohibition is far more sweeping than the policy in Trinity Lutheran, which barred churches from one narrow program for playground resurfacing—causing \"in all likelihood\" only \"a few extra scraped knees.\" 582 U. S., at ___ (slip op., at 15). And the prohibition before us today burdens not only religious schools but also the families whose children attend or hope to attend them. Drawing on \"enduring American tradition,\" we have long recognized the rights of parents to direct \"the religious upbringing\" of their children. Wisconsin v. Yoder, 406 U. S. 205, 213–214, 232 (1972). Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution. See Pierce v. Society of Sisters, 268 U. S. 510, 534–535 (1925). But the no-aid provision penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason. The Department also suggests that the no-aid provision advances Montana’s interests in public education. According to the Department, the no-aid provision safeguards the public school system by ensuring that government support is not diverted to private schools. See Brief for Respondents 19, 25. But, under that framing, the no-aid provision is fatally underinclusive because its \"proffered objectives are not pursued with respect to analogous nonreligious conduct.\" Lukumi, 508 U. S., at 546. On the Department’s view, an interest in public education is undermined by diverting government support to any private school, yet the no-aid provision bars aid only to religious ones. A law does not advance \"an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.\" Id., at 547 (internal quotation marks and alterations omitted). Montana’s interest in public education cannot justify a no-aid provision that requires only religious private schools to \"bear [its] weight.\" Ibid. A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious. III The Department argues that, at the end of the day, there is no free exercise violation here because the Montana Supreme Court ultimately eliminated the scholarship program altogether. According to the Department, now that there is no program, religious schools and adherents cannot complain that they are excluded from any generally available benefit. Two dissenters agree. JUSTICE GINSBURG reports that the State of Montana simply chose to \"put all private school parents in the same boat\" by invalidating the scholarship program, post, at 5–6, and JUSTICE SOTOMAYOR describes the decision below as resting on state law grounds having nothing to do with the federal Free Exercise Clause, see post, at 1, 6. The descriptions are not accurate. The Montana Legislature created the scholarship program; the Legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other \"mechanism\" to make absolutely sure that religious schools received no aid, the court chose to invalidate the entire program. 393 Mont., at 466–468, 435 P. 3d, at 613–614. The final step in this line of reasoning eliminated the program, to the detriment of religious and non-religious schools alike. But the Court’s error of federal law occurred at the beginning. When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation. Had the Court recognized that this was, indeed, \"one of those cases\" in which application of the no-aid provision \"would violate the Free Exercise Clause,\" id., at 468, 435 P. 3d, at 614, the Court would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, the Court would have had no basis for terminating the program. Because the elimination of the program flowed directly from the Montana Supreme Court’s failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision, or as resting on adequate and independent state law  grounds.  The Supremacy Clause provides that \"the Judges in every State shall be bound\" by the Federal Constitution, \"any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.\" Art. VI, cl. 2. \"[T]his Clause creates a rule of decision\" directing state courts that they \"must not give effect to state laws that conflict with federal law[].\" Armstrong v. Exceptional Child Center, Inc., 575 U. S. 320, 324 (2015). Given the conflict between the Free Exercise Clause and the application of the no-aid provision here, the Montana Supreme Court should have \"disregard[ed]\" the no-aid provision and decided this case \"conformably to the [C]onstitution\" of the United States. Marbury v. Madison, 1 Cranch 137, 178 (1803). That \"supreme law of the land\" condemns discrimination against religious schools and the families whose children attend them. Id., at 180. They are \"member[s] of the community too,\" and their exclusion from the scholarship program here is \"odious to our Constitution\" and \"cannot stand.\" Trinity Lutheran, 582 U. S., at ___, ___ (slip op., at 11, 15). The judgment of the Montana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion."},
{"docket_number": "19-177", "syllabus": "In the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, as relevant here, Congress limited the funding of American and foreign nongovernmental organizations to those with \"a policy explicitly opposing prostitution and sex trafficking.\" 22 U. S. C. §7631(f). In 2013, that Policy Requirement, as it is known, was held to be an unconstitutional restraint on free speech when applied to American organizations. Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 205. Those American organizations now challenge the requirement’s constitutionality when applied to their legally distinct foreign affiliates. The District Court held that the Government was prohibited from enforcing the requirement against the foreign affiliates, and the Second Circuit affirmed. Held: Because plaintiffs’ foreign affiliates possess no First Amendment rights, applying the Policy Requirement to them is not unconstitutional. Two bedrock legal principles lead to this conclusion. As a matter of American constitutional law, foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution. See, e.g., Boumediene v. Bush, 553 U. S. 723, 770–771. And as a matter of American corporate law, separately incorporated organizations are separate legal units with distinct legal rights and obligations. See, e.g., Dole Food Co. v. Patrickson, 538 U. S. 468, 474–475. That conclusion corresponds to Congress’s historical practice of conditioning funding to foreign organizations, which helps ensure that U. S. foreign aid serves U. S. interests. Plaintiffs’ counterarguments are unpersuasive. First, they claim that because a foreign affiliate’s policy statement may be attributed to them, American organizations themselves possess a First Amendment right against the Policy Requirement’s imposition on their foreign affiliates. First Amendment cases involving speech misattribution between formally distinct speakers, see, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574– 575, however, are premised on something missing here: Government compulsion to associate with another entity. Even protecting the free speech rights of only those foreign organizations that are closely identified with American organizations would deviate from the fundamental principle that foreign organizations operating abroad do not possess rights under the U. S. Constitution and enmesh the courts in difficult line-drawing exercises. Second, plaintiffs assert that the Court’s 2013 decision encompassed both American organizations and their foreign affiliates. That decision did not facially invalidate the Act’s funding condition, suggest that the First Amendment requires the Government to exempt plaintiffs’ foreign affiliates or other foreign organizations from the Policy Requirement, or purport to override longstanding constitutional law and corporate law principles. Pp. 3– 9. 911 F. 3d 104, reversed.", "opinion": "In 2003, Congress passed and President George W. Bush signed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, known as the Leadership Act. 117 Stat. 711, as amended, 22 U. S. C. §7601 et seq. Aiming to enhance America’s response to the ravages of the global HIV/AIDS crisis, the Leadership Act launched \"the largest international public health program of its kind ever created.\" §7601(29). The Act has helped save an estimated 17 million lives, primarily in Africa, and is widely viewed as the most successful American foreign aid program since the Marshall Plan. To advance the global relief effort, Congress has allocated billions of dollars to American and foreign nongovernmental organizations that combat HIV/AIDS abroad. As relevant here, Congress sought to fund only those organizations that have, or agree to have, a \"policy explicitly opposing prostitution and sex trafficking.\" §7631(f ); see also §7631(e); 45 CFR §89.1 (2019). Congress imposed that condition on funding, known as the Policy Requirement, because Congress found that prostitution and sex trafficking \"are additional causes of and factors in the spread of the HIV/AIDS epidemic\" and that prostitution and sex trafficking \"are degrading to women and children.\" §7601(23). Plaintiffs are American nongovernmental organizations that receive Leadership Act funds to fight HIV/AIDS abroad. Plaintiffs have long maintained that they do not want to express their agreement with the American commitment to eradicating prostitution. Plaintiffs consider a public stance of neutrality toward prostitution more helpful to their sensitive work in some parts of the world and also to their full participation in the global efforts to prevent HIV/AIDS. After enactment of the Leadership Act, plaintiffs challenged the Policy Requirement, alleging that it violated the First Amendment. In 2013, this Court agreed, concluding that the Policy Requirement ran afoul of the free speech principle that the Government \"may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech.\" Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 205, 214 (2013) (internal quotation marks omitted). Therefore, the Policy Requirement no longer applies to American organizations that receive Leadership Act funds, meaning that American organizations can obtain Leadership Act funds even if they do not have a policy explicitly opposing prostitution and sex trafficking. But as has been the case since 2003, foreign organizations that receive Leadership Act funds remain subject to the Policy Requirement and still must have a policy explicitly opposing prostitution and sex trafficking. Following this Court’s 2013 decision barring the Government from enforcing the Policy Requirement against American organizations, plaintiffs returned to court, invoking the First Amendment and seeking to bar the Government from enforcing the Policy Requirement against plaintiffs’ legally distinct foreign affiliates. The U. S. District Court for the Southern District of New York agreed with plaintiffs and prohibited the Government from enforcing the Policy Requirement against plaintiffs’ foreign affiliates. The U. S. Court of Appeals for the Second Circuit affirmed. Judge Straub dissented. He described as \"startling\" the proposition that the First Amendment could extend to foreign organizations operating abroad. 911 F. 3d 104, 112 (2018). The Second Circuit’s decision was stayed pending this Court’s review, meaning that foreign organizations currently remain subject to the Policy Requirement. We granted certiorari, 589 U. S. ___ (2019), and now reverse the judgment of the Second Circuit. Plaintiffs’ position runs headlong into two bedrock principles of American law. First, it is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution. Plaintiffs do not dispute that fundamental principle. Tr. of Oral Arg. 58–59; see, e.g., Boumediene v. Bush, 553 U. S. 723, 770– 771 (2008); Hamdi v. Rumsfeld, 542 U. S. 507, 558–559 (2004) (Scalia, J., dissenting); United States v. Verdugo-Urquidez, 494 U. S. 259, 265–275 (1990); Johnson v. Eisentrager, 339 U. S. 763, 784 (1950); United States ex rel. Turner v. Williams, 194 U. S. 279, 292 (1904); U. S. Const., Preamble. As the Court has recognized, foreign citizens in the United States may enjoy certain constitutional rights—to take just one example, the right to due process in a criminal trial. See, e.g., Verdugo-Urquidez, 494 U. S., at 270–271; Plyler v. Doe, 457 U. S. 202, 210–213 (1982); Kwong Hai Chew v. Colding, 344 U. S. 590, 596 (1953); Bridges v. Wixon, 326 U. S. 135, 148 (1945); Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886); cf. Bluman v. Federal Election Comm’n, 800 F. Supp. 2d 281, 286–289 (DC 2011), aff ’d, 565 U. S. 1104 (2012). And so too, the Court has ruled that, under some circumstances, foreign citizens in the U. S. Territories—or in \"a territory\" under the \"indefinite\" and \"complete and total control\" and \"within the constant jurisdiction\" of the United States—may possess certain constitutional rights. Boumediene, 553 U. S., at 755–771. But the Court has not allowed foreign citizens outside the United States or such U. S. territory to assert rights under the U. S. Constitution. If the rule were otherwise, actions by American military, intelligence, and law enforcement personnel against foreign organizations or foreign citizens in foreign countries would be constrained by the foreign citizens’ purported rights under the U. S. Constitution. That has never been the law. See Verdugo-Urquidez, 494 U. S., at 273–274; Eisentrager, 339 U. S., at 784.* To be sure, Congress may seek to enact laws that afford foreign citizens abroad statutory rights or causes of action against misconduct by U. S. Government officials, or laws that otherwise regulate the conduct of U. S. officials abroad. See Verdugo-Urquidez, 494 U. S., at 275; cf. 10 U. S. C. §§2734(a), 2734a(a); 18 U. S. C. §2340A; 21 U. S. C. §904; 22 U. S. C. §§2669, 2669–1; 42 U. S. C. §2000dd; but see 28 U. S. C. §2680(k) (Federal Tort Claims Act’s exception for torts \"arising in a foreign country\"). Plaintiffs did not raise any such statutory claim in this case. Second, it is long settled as a matter of American corporate law that separately incorporated organizations are separate legal units with distinct legal rights and obligations. See Dole Food Co. v. Patrickson, 538 U. S. 468, 474– 475 (2003); Cedric Kushner Promotions, Ltd. v. King, 533 U. S. 158, 163 (2001); P. Blumberg, K. Strasser, N. Georgakopoulos, & E. Gouvin, Corporate Groups §§6.01, 6.02, 6.05 (2020 Supp.). Plaintiffs’ foreign affiliates were incorporated in other countries and are legally separate from plaintiffs’ American organizations. Even though the foreign organizations have affiliated with the American organizations, the foreign organizations remain legally distinct from the American organizations. Plaintiffs do not ask this Court to pierce the corporate veil, nor do they invoke any other relevant exception to that fundamental corporate law principle. Tr. of Oral Arg. 54. Those two bedrock principles of American constitutional law and American corporate law together lead to a simple conclusion: As foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment. That conclusion corresponds to historical practice regarding American foreign aid. The United States supplies more foreign aid than any other nation in the world. Cong. Research Serv., Foreign Assistance: An Introduction to U. S. Programs and Policy (2020) (Summary). Acting with the President in the legislative process, Congress sometimes imposes conditions on foreign aid. See 22 U. S. C. §§2271, 2272, 2371, 7110(g)(2). Congress may condition funding on a foreign organization’s ideological commitments—for example, pro-democracy, pro-women’s rights, anti-terrorism, pro-religious freedom, anti-sex trafficking, or the like. Doing so helps ensure that U. S. foreign aid serves U. S. interests. By contrast, plaintiffs’ approach would throw a constitutional wrench into American foreign policy. In particular, plaintiffs’ approach would put Congress in the untenable position of either cutting off certain funding programs altogether, or instead funding foreign organizations that may not align with U. S. values. We see no constitutional justification for the Federal Judiciary to interfere in that fashion with American foreign policy and American aid to foreign organizations. In short, plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad have no First Amendment rights. To overcome that conclusion, plaintiffs advance two main arguments. But neither persuades us. First, plaintiffs theorize that the foreign affiliates’ required statement of policy against prostitution and sex trafficking may be incorrectly attributed to the American organizations. Therefore, the theory goes, the American organizations themselves possess a First Amendment right against imposition of the Policy Requirement on their foreign affiliates. As support, plaintiffs point to First Amendment cases involving speech misattribution between formally distinct speakers. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574–575 (1995); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 15 (1986) (plurality opinion); cf. PruneYard Shopping Center v. Robins, 447 U. S. 74, 87 (1980). But the constitutional issue in those cases arose because the State forced one speaker to host another speaker’s speech. See Hurley, 515 U. S., at 572–573; Pacific Gas, 475 U. S., at 15; cf. PruneYard, 447 U. S., at 85, 87. Here, by contrast, the United States is not forcing plaintiffs to affiliate with foreign organizations. Plaintiffs are free to choose whether to affiliate with foreign organizations and are free to disclaim agreement with the foreign affiliates’ required statement of policy. Any alleged misattribution in this case and any effect on the American organizations’ message of neutrality toward prostitution stems from their choice to affiliate with foreign organizations, not from U. S. Government compulsion. Because the First Amendment misattribution cases are premised on government compulsion to associate with another entity, those cases do not apply here. In support of their misattribution argument, plaintiffs also cite Regan v. Taxation With Representation of Wash., 461 U. S. 540, 544–545, and n. 6 (1983). But as relevant here, that case simply explained that a speech restriction on a corporate entity did not prevent a separate affiliate from speaking, a point that is not disputed in this case. We appreciate that plaintiffs would prefer to affiliate with foreign organizations that do not oppose prostitution. But Congress required foreign organizations to oppose prostitution in return for American funding. And plaintiffs cannot export their own First Amendment rights to shield foreign organizations from Congress’s funding conditions. Stressing that their position is limited, plaintiffs emphasize that the Court could narrowly decide to protect the free speech rights of only those foreign organizations that are closely identified with American organizations—for example, those foreign affiliates that share similar names, logos, and brands with American organizations. According to plaintiffs, those \"closely identified\" scenarios greatly increase the risk of misattribution. But again, the First Amendment cases involving speech misattribution arose when the State forced one speaker to host another speaker’s speech. No compulsion is present here. Moreover, plaintiffs’ proposed line-drawing among foreign organizations would blur a clear rule of American law: Foreign organizations operating abroad do not possess rights under the U. S. Constitution. Plaintiffs’ carve-out not only would deviate from that fundamental principle, but also would enmesh the courts in difficult line-drawing exercises—how closely identified is close enough?—and leave courts without any principled basis for making those judgments. We discern no good reason to invent a new and legally unmoored exception to longstanding principles of American constitutional and corporate law. Second, plaintiffs argue that the Court’s 2013 decision in this case encompassed both plaintiffs’ American organizations and their foreign affiliates, meaning that, in plaintiffs’ view, the Court has already resolved the issue before us. That is not correct. The plaintiffs in the 2013 case were these same American organizations. It is true that the Court considered the possibility that an American organization could work through affiliates to potentially avoid the burdens of the otherwise-unconstitutional application of the Policy Requirement. But the Court rejected that alternative, which in essence would have compelled the American organizations to affiliate with other organizations. The Court instead ruled that the Policy Requirement may not be applied to plaintiffs’ American organizations. Therefore, plaintiffs’ current affiliations with foreign organizations are their own choice, not the result of any U. S. Government compulsion. Stated simply, in the prior decision, the Court did not facially invalidate the Act’s condition on funding. The Court did not hold or suggest that the First Amendment requires the Government to exempt plaintiffs’ foreign affiliates or other foreign organizations from the Policy Requirement. And the Court did not purport to override the longstanding constitutional law principle that foreign organizations operating abroad do not possess constitutional rights, or the elementary corporate law principle that each corporation is a separate legal unit. The dissent emphasizes that this case concerns \"the First Amendment rights of American organizations.\" Post, at 1 (opinion of BREYER, J.). We respectfully disagree with that characterization of the question presented. The Court’s prior decision recognized the First Amendment rights of American organizations and held that American organizations do not have to comply with the Policy Requirement. This case instead concerns foreign organizations that are voluntarily affiliated with American organizations. Those foreign organizations are legally separate from the American organizations. And because foreign organizations operating abroad do not possess constitutional rights, those foreign organizations do not have a First Amendment right to disregard the Policy Requirement. In sum, plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad possess no rights under the U. S. Constitution. We reverse the judgment of the U. S. Court of Appeals for the Second Circuit."},
{"docket_number": "18-1323", "syllabus": "Louisiana’s Act 620, which is almost word-for-word identical to the Texas “admitting privileges” law at issue in Whole Woman’s Health v. Hellerstedt, 579 U. S. ___, requires any doctor who performs abortions to hold “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced,” and defines “active admitting privileges” as being “a member in good standing” of the hospital’s “medical staff . . . with the ability to admit a patient and to provide diagnostic and surgical services to such patient.” In these consolidated cases, five abortion clinics and four abortion providers challenged Act 620 before it was to take effect, alleging that it was unconstitutional because (among other things) it imposed an undue burden on the right of their patients to obtain an abortion. (The plaintiff providers and two additional doctors are referred to as Does 1 through 6.) The plaintiffs asked for a temporary restraining order (TRO), followed by a preliminary injunction to prevent the law from taking effect. The defendant (State) opposed the TRO request but also urged the court not to delay ruling on the preliminary injunction motion, asserting that there was no doubt about the physicians’ standing. Rather than staying the Act’s effective date, the District Court provisionally forbade the State to enforce the Act’s penalties, while directing the plaintiff doctors to continue to seek privileges and to keep the court apprised of their progress. Several months later, after a 6-day bench trial, the District Court declared Act 620 unconstitutional on its face and preliminarily enjoined its enforcement. On remand in light of Whole Woman’s Health, the District Court ruled favorably on the plaintiffs’ request for a permanent injunction on the basis of the record previously developed, finding, among other things, that the law offers no significant health benefit; that conditions on admitting privileges common to hospitals throughout the State have made and will continue to make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety; and that this inability places a substantial obstacle in the path of women seeking an abortion. The court concluded that the law imposes an undue burden and is thus unconstitutional. The Fifth Circuit reversed, agreeing with the District Court’s interpretation of the standards that apply to abortion regulations, but disagreeing with nearly every one of the District Court’s factual findings. Held: The judgment is reversed. 905 F. 3d 787, reversed. JUSTICE BREYER, joined by JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, concluded: 1. The State’s unmistakable concession of standing as part of its effort to obtain a quick decision from the District Court on the merits of the plaintiffs’ undue-burden claims and a long line of well-established precedents foreclose its belated challenge to the plaintiffs’ standing in this Court. Pp. 11–16. 2. Given the District Court’s factual findings and precedents, particularly Whole Woman’s Health, Act 620 violates the Constitution. Pp. 16–40. (a) Under the applicable constitutional standards set forth in the Court’s earlier abortion-related cases, particularly Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, and Whole Woman’s Health, “ ‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’ ” and are therefore “constitutionally invalid,” Whole Woman’s Health, 579 U. S., at ___. This standard requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law’s “asserted benefits against the burdens” it imposes on abortion access. Id., at ___. The District Court here, like the trial court in Whole Woman’s Health, faithfully applied these standards. The Fifth Circuit disagreed with the District Court, not so much in respect to the legal standards, but in respect to the factual findings on which the District Court relied in assessing both the burdens that Act 620 imposes and the health-related benefits it might bring. Under well-established legal standards, a district court’s findings of fact “must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. Rule. Civ. Proc. 52(a)(6). When the district court is “sitting without a jury,” the appellate court “is not to decide factual issues de novo,” Anderson v. Bessemer City, 470 U. S. 564, 573. Provided “the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id., at 573–574. Viewed in light of this standard, the testimony and other evidence contained in the extensive record developed over the 6-day trial support the District Court’s conclusion on Act 620’s constitutionality. Pp. 16–19. (b) Taken together, the District Court’s findings and the evidence underlying them are sufficient to support its conclusion that enforcing the admitting-privileges requirement would drastically reduce the number and geographic distribution of abortion providers, making it impossible for many women to obtain a safe, legal abortion in the State and imposing substantial obstacles on those who could. Pp. 19–35. (1) The evidence supporting the court’s findings in respect to Act 620’s impact on abortion providers is stronger and more detailed than that in Whole Woman’s Health. The District Court supervised Does 1, 2, 5, and 6 for more than 18 months as they tried, and largely failed, to obtain conforming privileges from 13 relevant hospitals; it relied on a combination of direct evidence that some of the doctors’ applications were denied for reasons having nothing to do with their ability to perform abortions safely, and circumstantial evidence—including hospital bylaws with requirements like those considered in Whole Woman’s Health and evidence that showed the role that opposition to abortion plays in some hospitals’ decisions—that explained why other applications were denied despite the doctors’ good-faith efforts. Just as in Whole Woman’s Health, that evidence supported the District Court’s factual finding that Louisiana’s admitting-privileges requirement serves no “relevant credentialing function.” 579 U. S., at ___. The Fifth Circuit's conclusion that Does 2, 5, and 6 acted in bad faith cannot be squared with the clear-error standard of review that applies to the District Court’s contrary findings. Pp. 19–31. (2) The District Court also drew from the record evidence several conclusions in respect to the burden that Act 620 is likely to impose upon women’s ability to access an abortion in Louisiana. It found that enforcing that requirement would prevent Does 1, 2, and 6 from providing abortions altogether. Doe 3 gave uncontradicted, in-court testimony that he would stop performing abortions if he was the last provider in northern Louisiana, so the departure of Does 1 and 2 would also eliminate Doe 3. And Doe 5’s inability to obtain privileges in the Baton Rouge area would leave Louisiana with just one clinic with one provider to serve the 10,000 women annually who seek abortions in the State. Those women not altogether prevented from obtaining an abortion would face “longer waiting times, and increased crowding.” Whole Woman’s Health, 579 U. S., at ___. Delays in obtaining an abortion might increase the risk that a woman will experience complications from the procedure and may make it impossible for her to choose a non-invasive medication abortion. Both expert and lay witnesses testified that the burdens of increased travel to distant clinics would fall disproportionately on poor women, who are least able to absorb them. Pp. 31–35. (c) An examination of the record also shows that the District Court’s findings regarding the law’s asserted benefits are not “clearly erroneous.” The court found that the admitting-privileges requirement serves no “relevant credentialing function.” 250 F. Supp. 3d 27, 87. Hospitals can, and do, deny admitting privileges for reasons unrelated to a doctor’s ability safely to perform abortions, focusing primarily upon a doctor’s ability to perform the inpatient, hospital-based procedures for which the doctor seeks privileges—not outpatient abortions. And nothing in the record indicates that the vetting of applicants for privileges adds significantly to the vetting already provided by the State Board of Medical Examiners. The court’s finding that the admitting-privileges requirement “does not conform to prevailing medical standards and will not improve the safety of abortion in Louisiana,” ibid., is supported by expert and lay trial testimony. And, as in Whole Woman’s Health, the State introduced no evidence “showing that patients have better outcomes when their physicians have admitting privileges” or “of any instance in which an admitting privileges requirement would have helped even one woman obtain better treatment,” 250 F. Supp. 3d., at 64. Pp. 35–38. (d) In light of the record, the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support and are not “clearly erroneous.” Thus, the court’s related factual and legal determinations and its ultimate conclusion that Act 620 is unconstitutional are proper. P. 38. THE CHIEF JUSTICE agreed that abortion providers in this case have standing to assert the constitutional rights of their patients and concluded that because Louisiana’s Act 620 imposes a burden on access to abortion just as severe as that imposed by the nearly identical Texas law invalidated four years ago in Whole Woman’s Health v. Hellerstedt, 579 U. S. ___, it cannot stand under principles of stare decisis. Pp. 1– 16.", "opinion": "In Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016), we held that \"‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’ \" and are therefore \"constitutionally invalid.\" Id., at ___ (slip op., at 1) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 878 (1992) (plurality opinion); alteration in original). We explained that this standard requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law’s \"asserted benefits against the burdens\" it imposes on abortion access. 579 U. S., at ___ (slip op., at 21) (citing Gonzales v. Carhart, 550 U. S. 124, 165 (2007)). The Texas statute at issue in Whole Woman’s Health required abortion providers to hold \"‘active admitting privileges at a hospital’\" within 30 miles of the place where they perform abortions. 579 U. S., at ___ (slip op., at 1) (quoting Tex. Health & Safety Ann. Code §171.0031(a) (West Cum. Supp. 2015)). Reviewing the record for ourselves, we found ample evidence to support the District Court’s finding that the statute did not further the State’s asserted interest in protecting women’s health. The evidence showed, moreover, that conditions on admitting privileges that served no \"relevant credentialing function,\" 579 U. S., at ___ (slip op., at 25), \"help[ed] to explain\" the closure of half of Texas’ abortion clinics, id., at ___ (slip op., at 24). Those closures placed a substantial obstacle in the path of Texas women seeking an abortion. Ibid. And that obstacle, \"when viewed in light of the virtual absence of any health benefit,\" imposed an \"undue burden\" on abortion access in violation of the Federal Constitution. Id., at ___ (slip op., at 26); see Casey, 505 U. S., at 878 (plurality opinion). In this case, we consider the constitutionality of a Louisiana statute, Act 620, that is almost word-for-word identical to Texas’ admitting-privileges law. See La. Rev. Stat. Ann. §40:1061.10(A)(2)(a) (West 2020). As in Whole Woman’s Health, the District Court found that the statute offers no significant health benefit. It found that conditions on admitting privileges common to hospitals throughout the State have made and will continue to make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety. And it found that this inability places a substantial obstacle in the path of women seeking an abortion. As in Whole Woman’s Health, the substantial obstacle the Act imposes, and the absence of any health-related benefit, led the District Court to conclude that the law imposes an undue burden and is therefore unconstitutional. See U. S. Const., Amdt. 14, §1. The Court of Appeals agreed with the District Court’s interpretation of the standards we have said apply to regulations on abortion. It thought, however, that the District Court was mistaken on the facts. We disagree. We have examined the extensive record carefully and conclude that it supports the District Court’s findings of fact. Those findings mirror those made in Whole Woman’s Health in every relevant respect and require the same result. We consequently hold that the Louisiana statute is unconstitutional. I A In March 2014, five months after Texas’ admitting-privileges requirement forced the closure of half of that State’s abortion clinics, Louisiana’s Legislature began to hold hearings to consider a substantially identical proposal. Compare Whole Woman’s Health, 579 U. S., at ___ – ___ (slip op., at 1–2), with June Medical Services LLC v. Kliebert, 250 F. Supp. 3d 27, 53 (MD La. 2017); Record 11220. The proposal became law in mid-June 2014. 2014 La. Acts p. 2330. As was true in Texas, Louisiana law already required abortion providers either to possess local hospital admitting privileges or to have a patient \"transfer\" arrangement with a physician who had such privileges. Compare Whole Woman’s Health, 579 U. S., at ___ (slip op., at 2) (citing Tex. Admin. Code, tit. 25, §139.56 (2009)), with former La. Admin. Code, tit. 48, pt. I, §4407(A)(3) (2003), 29 La. Reg. 706– 707 (2003). The new law eliminated that flexibility. Act 620 requires any doctor who performs abortions to hold \"active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.\" La. Rev. Stat. Ann. §40:1061.10(A)(2)(a). The statute defines \"active admitting privileges\" to mean that the doctor must be \"a member in good standing\" of the hospital’s \"medical staff . . . with the ability to admit a patient and to provide diagnostic and surgical services to such patient.\" Ibid.; La. Admin. Code, tit. 48, pt. I, §4401. Failure to comply may lead to fines of up to $4,000 per violation, license revocation, and civil liability. See ibid.; La. Rev. Stat. Ann. §40:1061.29. B A few weeks before Act 620 was to take effect in September 2014, three abortion clinics and two abortion providers filed a lawsuit in Federal District Court. They alleged that Act 620 was unconstitutional because (among other things) it imposed an undue burden on the right of their patients to obtain an abortion. App. 24. The court later consolidated their lawsuit with a similar, separate action brought by two other clinics and two other abortion providers. (Like the courts below, we shall refer to the two doctors in the first case as Doe 1 and Doe 2; we shall refer to the two doctors in the second case as Doe 5 and Doe 6; and we shall refer to two other doctors then practicing in Louisiana as Doe 3 and Doe 4.) The plaintiffs immediately asked the District Court to issue a temporary restraining order (TRO), followed by a preliminary injunction that would prevent the law from taking effect. June Medical Services LLC v. Caldwell, No. 14–cv– 00525 (MD La., Aug. 22, 2014), Doc. No. 5. The State of Louisiana, appearing for the defendant Secretary of the Department of Health and Hospitals, filed a response that opposed the plaintiffs’ TRO request. App. 32– 39. But the State went on to say that, if the court granted the TRO or if the parties reached an agreement that would allow the plaintiffs time to obtain privileges without a TRO, the court should hold a hearing on the preliminary injunction request as soon as possible. Id., at 43. The State argued that there was no reason to delay a ruling on the merits of the plaintiffs’ undue-burden claims. Id., at 43–44. It asserted that there was \"no question that the physicians had standing to contest the law.\" Id., at 44. And, in light of the State’s \"overriding interest in vindicating the constitutionality of its admitting-privileges law,\" the plaintiffs’ suit was \"the proper vehicle\" to \"remov[e] any cloud upon\" Act 620’s \"validity.\" Id., at 45. The District Court declined to stay the Act’s effective date. Instead, it provisionally forbade the State to enforce the Act’s penalties, while directing the plaintiff doctors to continue to seek conforming privileges and to keep the court apprised of their progress. See TRO in No. 14–cv–00525, Doc. No. 31, pp. 2–3; see, e.g., App. 48–55, 64–82. These updates continued through the date of the District Court’s decision. 250 F. Supp. 3d, at 77. C In June 2015, the District Court held a 6-day bench trial on the plaintiffs’ request for a preliminary injunction. It heard live testimony from a dozen witnesses, including three Louisiana abortion providers, June Medical’s administrator, the Secretary (along with a senior official) of the State’s Department of Health and Hygiene, and three experts each for the plaintiffs and the State. Id., at 33–34. It also heard from several other witnesses via deposition. Ibid. Based on this evidentiary record, the court issued a decision in January 2016 declaring Act 620 unconstitutional on its face and preliminarily enjoining its enforcement. June Medical Services LLC v. Kliebert, 158 F. Supp. 3d 473 (MD La.). The State immediately asked the Court of Appeals for the Fifth Circuit to stay the District Court’s injunction. The Court of Appeals granted that stay. But we then issued our own stay at the plaintiffs’ request, thereby leaving the District Court’s preliminary injunction (at least temporarily) in effect. See June Medical Services, L.L.C. v. Gee, 814 F. 3d 319 (CA5), vacated, 577 U. S. ___ (2016). Approximately two months later, in June 2016, we issued our decision in Whole Woman’s Health, reversing the Fifth Circuit’s judgment in that case. We remanded this case for reconsideration, and the Fifth Circuit in turn remanded the case to the District Court permitting it to engage in further factfinding. See June Medical Services, L.L.C. v. Gee, 2016 WL 11494731 (CA5, Aug. 24, 2016) (per curiam). All the parties agreed that the District Court could rule on the plaintiffs’ request for a permanent injunction on the basis of the record it had already developed. Minute Entry in No. 14–cv–00525, Doc. No. 253. The court proceeded to do so. D Because the issues before us in this case primarily focus upon the factual findings (and fact-related determinations) of the District Court, we set forth only the essential findings here, giving greater detail in the analysis that follows. With respect to the Act’s asserted benefits, the District Court found that: \"[A]bortion in Louisiana has been extremely safe, with particularly low rates of serious complications.\" 250 F. Supp. 3d, at 65. The \"testimony of clinic staff and physicians demonstrated\" that it \"rarely . . . is necessary to transfer patients to a hospital: far less than once a year, or less than one per several thousand patients.\" Id., at 63. And \"[w]hether or not a patient’s treating physician has admitting privileges is not relevant to the patient’s care.\" Id., at 64. There was accordingly \"‘no significant health-related problem that the new law helped to cure.’ The record does not contain any evidence that complications from abortion were being treated improperly, nor any evidence that any negative outcomes could have been avoided if the abortion provider had admitting privileges at a local hospital.\" Id., at 86. (quoting Whole Woman’s Health, 579 U. S., at ___ (slip op., at 22)); see also 250 F. Supp. 3d, at 86–87 (summarizing conclusions). There was also \"no credible evidence in the record that Act 620 would further the State’s interest in women’s health beyond that which is already insured under existing Louisiana law.\" Id., at 65. Turning to Act 620’s impact on women’s access to abortion, the District Court found that: Approximately 10,000 women obtain abortions in Louisiana each year. Id., at 39. At the outset of this litigation, those women were served by six doctors at five abortion clinics. Id., at 40, 41–44. By the time the court rendered its decision, two of those clinics had closed, and one of the doctors (Doe 4) had retired, leaving only Does 1, 2, 3, 5, and 6. Ibid. \"[N]otwithstanding the good faith efforts of Does 1, 2, 4, 5 and 6 to comply with the Act by getting active admitting privileges at a hospital within 30 miles of where they perform abortions, they have had very limited success for reasons related to Act 620 and not related to their competence.\" Id., at 78. These doctors’ inability to secure privileges was \"caused by Act 620 working in concert with existing laws and practices,\" including hospital bylaws and criteria that \"preclude or, at least greatly discourage, the granting of privileges to abortion providers.\" Id., at 50. These requirements establish that admitting privileges serve no \"‘relevant credentialing function’\" because physicians may be denied privileges \"for reasons unrelated to competency.\" Id., at 87 (quoting Whole Woman’s Health, 579 U. S., at ___ (slip. op., at 25)). They also make it \"unlikely that the [a]ffected clinics will be able to comply with the Act by recruiting new physicians who have or can obtain admitting privileges.\" 250 F. Supp. 3d, at 82. Doe 3 testified credibly \"that, as a result of his fears, and the demands of his private OB/GYN practice, if he is the last physician performing abortion in either the entire state or in the northern part of the state, he will not continue to perform abortions.\" Id., at 79; see also id., at 78–79 (summarizing that testimony). Enforcing the admitting-privileges requirement would therefore \"result in a drastic reduction in the number and geographic distribution of abortion providers, reducing the number of clinics to one, or at most two, and leaving only one, or at most two, physicians providing abortions in the entire state,\" Does 3 and 5, who would only be allowed to practice in Shreveport and New Orleans. Id., at 87. Depending on whether Doe 3 stopped practicing, or whether his retirement was treated as legally relevant, the impact would be a 55%–70% reduction in capacity. Id., at 81. \"The result of these burdens on women and providers, taken together and in context, is that many women seeking a safe, legal abortion in Louisiana will be unable to obtain one. Those who can will face substantial obstacles in exercising their constitutional right to choose abortion due to the dramatic reduction in abortion services.\" Id., at 88; see id., at 79, 82, 87–88. In sum, \"Act 620 does not advance Louisiana’s legitimate interest in protecting the health of women seeking abortions. Instead, Act 620 would increase the risk of harm to women’s health by dramatically reducing the availability of safe abortion in Louisiana.\" Id., at 87; see also id., at 65–66. The District Court added that \"there is no legally significant distinction between this case and [Whole Woman’s Health]: Act 620 was modeled after the Texas admitting privileges requirement, and it functions in the same manner, imposing significant obstacles to abortion access with no countervailing benefits.\" Id., at 88. On the basis of these findings, the court held that Act 620 and its implementing regulations are unconstitutional. It entered an injunction permanently forbidding their enforcement. E The State appealed. A divided panel of the Court of Appeals reversed the District Court’s judgment. The panel majority concluded that Act 620’s impact was \"dramatically less\" than that of the Texas law invalidated in Whole Woman’s Health. June Medical Services L.L.C. v. Gee, 905 F. 3d 787, 791 (CA5 2018). \"Despite its diligent effort to apply [Whole Woman’s Health] faithfully,\" the majority thought that the District Court had \"clearly erred in concluding otherwise.\" Id., at 815. With respect to the Act’s asserted benefits, the majority thought that, \"[u]nlike Texas, Louisiana presents some evidence of a minimal benefit.\" Id., at 805. Rejecting the District Court’s contrary finding, it concluded that the admitting-privileges requirement \"performs a real, and previously unaddressed, credentialing function that promotes the wellbeing of women seeking abortion.\" Id., at 806. The majority believed that the process of obtaining privileges would help to \"verify an applicant’s surgical ability, training, education, experience, practice record, and criminal history.\" Id., at 805, and n. 53. And it accepted the State’s argument that the law \"brings the requirements regarding outpatient abortion clinics into conformity with the preexisting requirement that physicians at ambulatory surgical centers (‘ASCs’) must have privileges at a hospital within the community.\" Id., at 805. Moving on to Act 620’s burdens, the appeals court wrote that \"everything turns on whether the privileges requirement actually would prevent doctors from practicing in Louisiana.\" Id., at 807. Although the State challenged the District Court’s findings only with respect to Does 2 and 3, the Court of Appeals went further. It disagreed with nearly every one of the District Court’s findings, concluding that \"the district court erred in finding that only Doe 5 would be able to obtain privileges and that the application process creates particular hardships and obstacles for abortion providers in Louisiana.\" Id., at 810. The court noted that \"[a]t least three hospitals have proven willing to extend privileges.\" Ibid. It thought that \"only Doe 1 has put forth a good-faith effort to get admitting privileges,\" while \"Doe 2, Doe 5, and Doe 6 could likely obtain privileges,\" ibid., and \"Doe 3’s personal choice to stop practicing cannot be legally attributed to Act 620,\" id., at 811. Having rejected the District Court’s findings with respect to all but one of the physicians, the Court of Appeals concluded that \"there is no evidence that Louisiana facilities will close from Act 620.\" Id., at 810. The appeals court allowed that the Baton Rouge clinic where Doe 5 had not obtained privileges would close. But it reasoned that \"[b]ecause obtaining privileges is not overly burdensome,. . . the fact that one clinic would have to close is not a substantial burden that can currently be attributed to Act 620 as distinguished from Doe 5’s failure to put forth a good faith effort.\" Ibid. The Court of Appeals added that the additional work that Doe 2 and Doe 3 would have to do to compensate for Doe 1’s inability to perform abortions \"does not begin to approach the capacity problem in\" Whole Woman’s Health. 905 F. 3d, at 812. It estimated that Act 620 would \"resul[t] in a potential increase\" in waiting times \"of 54 minutes at one of the state’s clinics for at most 30% of women.\" Id., at 815. On the basis of these findings, the panel majority concluded that Louisiana’s admitting-privileges requirement would impose no \"substantial burden at all\" on Louisiana women seeking an abortion, \"much less a substantial burden on a large fraction of women as is required to sustain a facial challenge.\" Ibid. Judge Higginbotham dissented. The Court of Appeals denied the plaintiffs’ petition for en banc rehearing over dissents by Judges Dennis and Higginson, joined by four of their colleagues. See June Medical Services, L.L.C. v. Gee, 913 F. 3d 573 (2019) (per curiam). The plaintiffs then asked this Court to stay the Fifth Circuit’s judgment. We granted their application, thereby allowing the District Court’s injunction to remain in effect. June Medical Services, L.L.C. v. Gee, 586 U. S. ___ (2019). The plaintiffs subsequently filed a petition for certiorari addressing the merits of the appeals court’s decision. The State filed a cross-petition, challenging the plaintiffs’ authority to maintain this action. We granted both petitions. II We initially consider a procedural argument that the State raised for the first time in its cross-petition for certiorari. As we have explained, the plaintiff abortion providers and clinics in this case have challenged Act 620 on the ground that it infringes their patients’ rights to access an abortion. The State contends that the proper parties to assert these rights are the patients themselves. We think that the State has waived that argument. The State’s argument rests on the rule that a party cannot ordinarily \"‘rest his claim to relief on the legal rights or interests of third parties.’\" Kowalski v. Tesmer, 543 U. S. 125, 129 (2004) (quoting Warth v. Seldin, 422 U. S. 490, 499 (1975)). This rule is \"prudential.\" 543 U. S., at 128–129. It does not involve the Constitution’s \"case-or-controversy requirement.\" Id., at 129; see Craig v. Boren, 429 U. S. 190, 193 (1976); Singleton v. Wulff, 428 U. S. 106, 112 (1976). And so, we have explained, it can be forfeited or waived. See Craig, 429 U. S., at 193–194. As we pointed out, supra, at 4–5, the State’s memorandum opposing the plaintiffs’ TRO request urged the District Court to proceed swiftly to the merits of the plaintiffs’ undue-burden claim. It argued that there was \"no question that the physicians had standing to contest\" Act 620. App. 44. And it told the District Court that the Fifth Circuit had found that doctors challenging Texas’ \"identical\" law \"had third-party standing to assert their patients’ rights.\" Id., at 43–44. Noting that the Texas law had \"already been upheld,\" the State asserted that it had \"a keen interest in removing any cloud upon the validity of its law.\" Id., at 45. It insisted that this suit was \"the proper vehicle to do so.\" Ibid. The State did not mention its current objection until it filed its cross-petition—more than five years after it argued that the plaintiffs’ standing was beyond question. The State’s unmistakable concession of standing as part of its effort to obtain a quick decision from the District Court on the merits of the plaintiffs’ undue-burden claims bars our consideration of it here. See Wood v. Milyard, 566 U. S. 463, 474 (2012); cf. post, at 24–25 (ALITO, J., dissenting) (addressing the Court’s approach to claims forfeited, rather than waived); post, at 7–8 (GORSUCH, J., dissenting) (addressing waiver of structural rather than prudential objections). The State refers to the Fifth Circuit’s finding of standing in Whole Woman’s Health as an excuse for its concession. Brief for Respondent in No. 18–1323, p. 52 (Brief for Respondent). But the standing argument the State makes here rests on reasons that it tells us are specific to abortion providers in Louisiana. See id., at 41–48. We are not persuaded that the State could have thought it was precluded from making those arguments by a decision with respect to Texas doctors. And even if the State had merely forfeited its objection by failing to raise it at any point over the last five years, we would not now undo all that has come before on that basis. What we said some 45 years ago in Craig applies equally today: \"[A] decision by us to forgo consideration of the constitutional merits\"—after \"the parties have sought or at least have never resisted an authoritative constitutional determination\" in the courts below—\"in order to await the initiation of a new challenge to the statute by injured third parties would be impermissibly to foster repetitive and time-consuming litigation under the guise of caution and prudence.\" 429 U. S., at 193–194 (quotation altered). In any event, the rule the State invokes is hardly absolute. We have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations. See, e.g., Whole Woman’s Health, 579 U. S., at ___; Gonzales, 550 U. S., at 133; Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 324 (2006); Stenberg v. Carhart, 530 U. S. 914, 922 (2000); Mazurek v. Armstrong, 520 U. S. 968, 969–970 (1997) (per curiam); Casey, 505 U. S., at 845 (majority opinion); Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 440, n. 30 (1983); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 62 (1976); Doe v. Bolton, 410 U. S. 179, 188–189 (1973). And we have generally permitted plaintiffs to assert third-party rights in cases where the \"‘enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.’\" Kowalski, 543 U. S., at 130 (quoting Warth, 422 U. S., at 510); see, e.g., Department of Labor v. Triplett, 494 U. S. 715, 720 (1990) (Scalia, J., for the Court) (attorney raising rights of clients to challenge restrictions on fee arrangements); Craig, 429 U. S., at 192 (convenience store raising rights of young men to challenge sex-based restriction on beer sales); Doe, 410 U. S., at 188 (abortion provider raising the rights of pregnant women to access an abortion); Carey v. Population Services Int’l, 431 U. S. 678 (1977) (distributors of contraceptives raising rights of prospective purchasers to challenge restrictions on sales of contraceptives); Eisenstadt v. Baird, 405 U. S. 438 (1972) (similar); Griswold v. Connecticut, 381 U. S. 479, 481 (1965) (similar); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969) (white property owner raising rights of black contractual counterparty to challenge discriminatory restrictions on ability to contract); Barrows v. Jackson, 346 U. S. 249 (1953) (similar). In such cases, we have explained, \"the obvious claimant\" and \"the least awkward challenger\" is the party upon whom the challenged statute imposes \"legal duties and disabilities.\" Craig, 429 U. S., at 196–197; see Akron, 462 U. S., at 440, n. 30; Danforth, 428 U. S., at 62; Doe, 410 U. S., at 188. The case before us lies at the intersection of these two lines of precedent. The plaintiffs are abortion providers challenging a law that regulates their conduct. The \"threatened imposition of governmental sanctions\" for noncompliance eliminates any risk that their claims are abstract or hypothetical. Craig, 429 U. S., at 195. That threat also assures us that the plaintiffs have every incentive to \"resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.\" Ibid. And, as the parties who must actually go through the process of applying for and maintaining admitting privileges, they are far better positioned than their patients to address the burdens of compliance. See Singleton, 428 U. S., at 117 (plurality opinion) (observing that \"the physician is uniquely qualified to litigate the constitutionality of the State’s interference with, or discrimination against,\" a woman’s decision to have an abortion). They are, in other words, \"the least awkward\" and most \"obvious\" claimants here. Craig, 429 U. S., at 197. Our dissenting colleagues suggest that this case is different because the plaintiffs have challenged a law ostensibly enacted to protect the women whose rights they are asserting. See post, at 25–26 (opinion of ALITO, J.); post, at 7 (opinion of GORSUCH, J.). But that is a common feature of cases in which we have found third-party standing. The restriction on sales of 3.2% beer to young men challenged by a drive-through convenience store in Craig was defended on \"public health and safety grounds,\" including the premise that young men were particularly susceptible to driving while intoxicated. 429 U. S., at 199–200; see Hager, Gender Discrimination and the Courts: New Ground to Cover, Washington Post, Sept. 26, 1976, p. 139. And the rule requiring approval from the Department of Labor for attorney fee arrangements challenged by a lawyer in Triplett was \"designed to protect [their clients] from their improvident contracts, in the interest not only of themselves and their families but of the public.\" 494 U. S., at 722 (internal quotation marks omitted). Nor is this the first abortion case to address provider standing to challenge regulations said to protect women. Both the hospitalization requirement in Akron, 462 U. S., at 435, and the hospital-accreditation requirement in Doe, 410 U. S., at 195, were defended as health and safety regulations. And the ban on saline amniocentesis in Danforth was based on the legislative finding \"that the technique is deleterious to maternal health.\" 428 U. S., at 76 (internal quotation marks omitted). In short, the State’s strategic waiver and a long line of well-established precedents foreclose its belated challenge to the plaintiffs’ standing. We consequently proceed to consider the merits of the plaintiffs’ claims. III A Turning to the merits, we apply the constitutional standards set forth in our earlier abortion-related cases, and in particular in Casey and Whole Woman’s Health. At the risk of repetition, we remind the reader of the standards we described above. In Whole Woman’s Health, we quoted Casey in explaining that \"‘a statute which, while furthering [a] valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.’\" 579 U. S., at ___ (slip op., at 19) (quoting Casey, 505 U. S., at 877 (plurality opinion)). We added that \" ‘[u]nnecessary health regulations’\" impose an unconstitutional \"‘undue burden’\" if they have \"‘the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.’\" 579 U. S., at ___ (slip op., at 19) (quoting Casey, 505 U. S., at 878; emphasis added). We went on to explain that, in applying these standards, courts must \"consider the burdens a law imposes on abortion access together with the benefits those laws confer.\" 579 U. S., at ___ – ___ (slip op., at 19–20). We cautioned that courts \"must review legislative ‘factfinding under a deferential standard.’\" Id., at ___ (slip op., at 20) (quoting Gonzales, 550 U. S., at 165). But they \"must not ‘place dispositive weight’ on those ‘findings,’\" for the courts \"‘retai[n] an independent constitutional duty to review factual findings where constitutional rights are at stake.’\" 579 U. S., at ___ (slip op., at 20) (quoting Gonzales, 550 U. S., at 165; emphasis deleted). We held in Whole Woman’s Health that the trial court faithfully applied these standards. It \"considered the evidence in the record—including expert evidence, presented in stipulations, depositions, and testimony.\" 579 U. S., at ___ (slip op., at 21). It \"then weighed the asserted benefits\" of the law \"against the burdens\" it imposed on abortion access. Ibid. And it concluded that the balance tipped against the statute’s constitutionality. The District Court in this suit did the same. B The Court of Appeals disagreed with the District Court, not so much in respect to the legal standards that we have just set forth, but because it did not agree with the factual findings on which the District Court relied in assessing both the burdens that Act 620 imposes and the health-related benefits it might bring. Compare, e.g., supra, at 6–9, with supra, at 9–11. We have consequently reviewed the record in detail ourselves. In doing so, we have applied well-established legal standards. We start from the premise that a district court’s findings of fact, \"whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.\" Fed. Rule Civ. Proc. 52(a)(6). In \"‘applying [this] standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’\" Anderson v. Bessemer City, 470 U. S. 564, 573 (1985) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 123 (1969)). Where \"the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.\" Anderson, 470 U. S., at 573–574. \"A finding that is ‘plausible’ in light of the full record—even if another is equally or more so—must govern.\" Cooper v. Harris, 581 U. S. ___, ___ (2017) (slip op., at 4). Our dissenting colleagues suggest that a different, lessdeferential standard should apply here because the District Court enjoined the admitting-privileges requirement before it was enforced. See post, at 11–12 (opinion of ALITO, J.); post, at 11–13 (opinion of GORSUCH, J.). We are aware of no authority suggesting that appellate scrutiny of factual determinations varies with the timing of a plaintiff ’s lawsuit or a trial court’s decision. And, in any event, the record belies the dissents’ claims that the District Court’s findings in this case were \"conjectural\" or premature. As we have explained, the District Court’s order on the plaintiffs’ motion for a temporary restraining order suspended only Act 620’s penalties. The plaintiffs were required to continue in their efforts to obtain admitting privileges. See supra, at 5. The District Court supervised those efforts through the trial and beyond. See 250 F. Supp. 3d, at 77. It based its findings on this real-world evidence, not speculative guesswork. Nor can we agree with the suggestion that the timing of the District Court’s decision somehow prejudiced the State. From the start, the State urged that the District Court decide the merits of the plaintiffs’ claims without awaiting a decision on their applications for admitting privileges. See App. 43–44. And, when this case returned to the District Court in August 2016, following our decision in Whole Woman’s Health, the State stipulated that the case was ripe for decision on the record as it stood in June 2015. See supra, at 5–6. In short, we see no legal or practical basis to depart from the familiar standard that applies to all \"[f]indings of fact.\" Fed. Rule Civ. Proc. 52(a). Under that familiar standard, we find that the testimony and other evidence contained in the extensive record developed over the 6-day trial support the District Court’s ultimate conclusion that, \"[e]ven if Act 620 could be said to further women’s health to some marginal degree, the burdens it imposes far outweigh any such benefit, and thus the Act imposes an unconstitutional undue burden.\" 250 F. Supp. 3d, at 88. IV The District Court’s Substantial-Obstacle Determination The District Court found that enforcing the admittingprivileges requirement would \"result in a drastic reduction in the number and geographic distribution of abortion providers.\" Id., at 87. In light of demographic, economic, and other evidence, the court concluded that this reduction would make it impossible for \"many women seeking a safe, legal abortion in Louisiana . . . to obtain one\" and that it would impose \"substantial obstacles\" on those who could. Id., at 88. We consider each of these findings in turn. A Act 620’s Effect on Abortion Providers We begin with the District Court’s findings in respect to Act 620’s impact on abortion providers. As we have said, the court found that the Act would prevent Does 1, 2, and 6 from providing abortions. And it found that the Act would bar Doe 5 from working in his Baton Rouge-based clinic, relegating him to New Orleans. See supra, at 7–8. 1 In Whole Woman’s Health, we said that, by presenting \"direct testimony\" from doctors who had been unable to secure privileges, and \"plausible inferences to be drawn from the timing of the clinic closures\" around the law’s effective date, the plaintiffs had \"satisfied their burden\" to establish that the Texas admitting-privileges requirement caused the closure of those clinics. 579 U. S., at ___ (slip op., at 26). We wrote that these inferences were bolstered by the sub-missions of amici in the medical profession, which \"describe[d] the undisputed general fact that hospitals often\" will restrict admitting privileges to doctors likely to seek a \"certain number of admissions per year.\" Id., at ___ (slip op., at 24) (internal quotation marks omitted). The likely effect of such requirements was that abortion providers \"would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit.\" Id., at ___ (slip op., at 25). We also referred to \"common prerequisites to obtaining admitting privileges that have nothing to do with ability to perform medical procedures\"; for example, requirements that doctors have \"treated a high number of patients in the hospital setting in the past year, clinical data requirements, residency requirements, and other discretionary factors.\" Ibid. To illustrate how these criteria impacted abortion providers, we noted the example of an obstetrician with 38 years’ experience who had been denied admitting privileges for reasons \"‘not based on clinical competence considerations.’\" Ibid. This, we said, showed that the law served no \"relevant credentialing function,\" but prevented qualified providers from serving women who seek an abortion. Id., at ___ (slip op., at 25). And that, in turn, \"help[ed] to explain why the new [law’s admitting-privileges] requirement led to the closure of \" so many Texas clinics. Id., at ___ (slip op., at 24). The evidence on which the District Court relied in this case is even stronger and more detailed. The District Court supervised Does 1, 2, 5, and 6 for over a year and a half as they tried, and largely failed, to obtain conforming privileges from 13 relevant hospitals. See 250 F. Supp. 3d, at 77–78; App. 48–55, 64–82. The court heard direct evidence that some of the doctors’ applications were denied for reasons that had nothing to do with their ability to perform abortions safely. 250 F. Supp. 3d, at 68–70, 76–77; App. 1310, 1435–1436. It also compiled circumstantial evidence that explains why other applications were denied and explains why, given the costs of applying and the reputational risks that accompany rejection, some providers could have chosen in good faith not to apply to every qualifying hospital. Id., at 1135, 1311 (discussing the costs associated with unsuccessful applications). That circumstantial evidence includes documents and testimony that described the processes Louisiana hospitals follow when considering applications for admitting privileges, including requirements like the ones we cited in Whole Woman’s Health that are unrelated to a doctor’s competency to perform abortions. See generally Brief for Medical Staff Professionals as Amici Curiae 11–30 (reviewing the hospital bylaws in the record). The evidence shows, among other things, that the fact that hospital admissions for abortion are vanishingly rare means that, unless they also maintain active OB/GYN practices, abortion providers in Louisiana are unlikely to have any recent in-hospital experience. 250 F. Supp. 3d, at 49. Yet such experience can well be a precondition to obtaining privileges. Doe 2, a board-certified OB/GYN with nearly 40 years’ experience, testified that he had not \"done any inhospital work in ten years\" and that just two of his patients in the preceding 5 years had required hospitalization. App. 387, 400. As a result, he was unable to comply with one hospital’s demand that he produce data on \"patient admissions and management, consultations and procedures performed\" in-hospital before his application could be \"processed.\" Id., at 1435; see id., at 437–438. Doe 1, a boardcertified family doctor with over 10 years’ experience, was similarly unable to \"submit documentation of hospital admissions and management of patients.\" Id., at 1436. The evidence also shows that many providers, even if they could initially obtain admitting privileges, would be unable to keep them. That is because, unless they have a practice that requires regular in-hospital care, they will lose the privileges for failing to use them. Doe 6, a boardcertified OB/GYN practitioner with roughly 50 years’ experience, provides only medication abortions. Id., at 1308. Of the thousands of women he served over the decade before the District Court’s decision, during which he also performed surgical abortions, just two required a direct transfer to a hospital and one of them was treated without being admitted. Id., at 1309. That safety record would make it impossible for Doe 6 to maintain privileges at any of the many Louisiana hospitals that require newly appointed physicians to undergo a process of \"focused professional practice evaluation,\" in which they are observed by hospital staff as they perform in-hospital procedures. See Record 2635, 2637, 2681, 9054; Brief for Medical Staff Professionals as Amici Curiae 28–29 (describing this practice); cf. Record 10755 (requiring an \"on-going review\" of practice \"in the Operating Room\"). And it would likewise disqualify him at hospitals that require physicians to admit a minimum number of patients, either initially or on an ongoing basis. See, e.g., id., at 9040, 9068–9069, 9150–9153; cf. App. 1193, 1182 (provider with no patient contacts in first year assigned to \"Affiliate\" status, without admitting privileges). The evidence also shows that opposition to abortion played a significant role in some hospitals’ decisions to deny admitting privileges. 250 F. Supp. 3d, at 48–49, 51–53 (collecting evidence). Some hospitals expressly bar anyone with privileges from performing abortions. App. 1180, 1205. Others are unwilling to extend privileges to abortion providers as a matter of discretion. Id., at 1127–1129. For example, Doe 2 testified that he was told not to bother asking for admitting privileges at University Health in Shreveport because of his abortion work. Id., at 383–384. And Doe 1 was told that his abortion work was an impediment to his application. Id., at 1315–1316. Still other hospitals have requirements that abortion providers cannot satisfy because of the hostility they face in Louisiana. Many Louisiana hospitals require applicants to identify a doctor (called a \"covering physician\") willing to serve as a backup should the applicant admit a patient and then for some reason become unavailable. See Record 9154, 9374, 9383, 9478, 9667, 10302, 10481, 10637, 10659–10661, 10676. The District Court found \"that opposition to abortion can present a major, if not insurmountable hurdle, for an applicant getting the required covering physician.\" 250 F. Supp. 3d, at 49; cf. Whole Woman’s Health, 579 U. S., at ___ (slip op., at 25) (citing testimony describing similar problems faced by Texas providers seeking covering physicians). Doe 5 is a board-certified OB/GYN who had been practicing for more than nine years at the time of trial. Of the thousands of abortions he performed in the three years prior to the District Court’s decision, not one required a direct transfer to a hospital. App. 1134. Yet he was unable to secure privileges at three Baton Rouge hospitals because he could not find a covering physician willing to be publicly associated with an abortion provider. Id., at 1335–1336. Doe 3, a board-certified OB/GYN with nearly 45 years of experience, testified that he, too, had difficulty arranging coverage because of his abortion work. Id., at 200–202. Just as in Whole Woman’s Health, the experiences of the individual doctors in this case support the District Court’s factual finding that Louisiana’s admitting-privileges requirement, like that in Texas’ law, serves no \"‘relevant credentialing function.’\" 250 F. Supp. 3d, at 87 (quoting Whole Woman’s Health, 579 U. S., at ___ (slip op., at 25). 2 The Court of Appeals found another explanation for the doctors’ inability to obtain privileges more compelling. It conceded that Doe 1 would not be able to obtain admitting privileges in spite of his good-faith attempts. It concluded, however, that Does 2, 5, and 6 had acted in bad faith. 905 F. 3d, at 807. The problem is that the law requires appellate courts to review a trial court’s findings under the deferential clear-error standard we have described. See supra, at 17–18. Our review of the record convinces us that the Court of Appeals misapplied that standard. JUSTICE ALITO does not dispute that the District Court’s findings are not \"clearly erroneous.\" He argues instead that both the District Court and the Court of Appeals applied the wrong legal standard to the record in this case. By asking whether the doctors acted in \"good faith,\" he contends, the courts below failed to account for the doctors’ supposed \"incentive to do as little as\" possible to obtain conforming privileges. Post, at 12–14 (dissenting opinion); cf. post, at 11–12 (GORSUCH, J., dissenting). But that is not a legal argument at all. It is simply another way of saying that the doctors acted in bad faith. The District Court, after monitoring the doctors’ efforts for a year and a half, found otherwise. And \"[w]hen the record is examined in light of the appropriately deferential standard, it is apparent that it contains nothing that mandates a finding that the District Court’s conclusion was clearly erroneous.\" Anderson, 470 U. S., at 577. Doe 2 The District Court found that Doe 2 tried in good faith to get admitting privileges within 30 miles of his Shreveportarea clinic. 250 F. Supp. 3d, at 68. The Court of Appeals thought that conclusion clearly erroneous for three reasons. First, the appeals court suggested that Doe 2 failed to submit the data needed to process his application to Bossier’s Willis-Knighton Health Center. 905 F. 3d, at 808. It is true that Doe 2 submitted no additional information in response to the last letter he received from Willis-Knighton. But the record explains that failure. Doe 2 reasonably believed there was no point in doing so. The hospital’s letter explained that the data Doe 2 had already \"submitted supports the outpatient [abortion] procedures you perform[ed].\" App. 1435. But, the letter added, this data did \"not support your request for hospital privileges\" because it did not allow the hospital to \"evaluate patient admissions and management, consultations, and procedures performed.\" Ibid. Doe 2 testified at trial that he understood this to mean that he would have to submit records of hospital admissions, even though he had not \"done any in-hospital work in ten years.\" Id., at 387; see id., at 437 (\"I’ve explained that that information doesn’t exist\"). Doe 2’s understanding was consistent with Willis-Knighton’s similar letter to Doe 1, which explicitly stated that \"we require that you submit documentation of hospital admissions and management of patients . . . .\" Id., at 1436. The record also shows that Doe 2 could not have maintained the \"adequate number of inpatient contacts\" Willis-Knighton requires to support continued privileges. Record 9640; see App. 387– 390, 404. JUSTICE ALITO faults Doe 2 for failing to pursue an application for \"courtesy staff \" privileges. See post, at 18–19. For one thing, it is far from clear that courtesy privileges entitle a physician to admit patients, as Act 620 requires. Compare, e.g., Record 9640 with id., at 9643. For another, that would not solve the problem that Doe 2 lacked the required in-hospital experience. JUSTICE ALITO wonders whether Willis-Knighton might have conferred courtesy privileges even without that experience. But the factors the hospital considers for both tiers of privileges are facially identical. Id., at 9669. We have no license to reverse a trial court’s factual findings based on speculative inferences from facts not in evidence. Second, the Court of Appeals found Doe 2’s explanation that Christus Schumpert Hospital \"would not staff an abortion provider\" to be \"blatantly contradicted by the record.\" 905 F. 3d, at 808. The record, however, contains Christus’ bylaws. They state that \"[n]o activity prohibited by\" the Ethical and Religious Directives to which the hospital subscribes \"shall be engaged in by any Medical Staff appointee or any other person exercising clinical privileges at the Health System.\" App. 1180. These directives provide that abortion \"is never permitted.\" Id., at 1205. And they warn against \"the danger of scandal in any association with abortion providers.\" Ibid. The State suggests that the Court of Appeals, in speaking of a \"contradic[tion],\" was referring to the fact that Doe 3 had admitting privileges at Christus, as had Doe 2 at an earlier time. Brief for Respondent 75. Doe 3 testified, however, that he did not know whether Christus was \"aware that I was performing abortions\" and that he did not \"feel like testing the waters there\"—i.e., by \"asking [Christus] how they would feel\" if they were aware that he \"was performing abortions.\" App. 273. And nothing in the record suggests that Christus, 10 years earlier, was aware of Doe 2’s connection with abortion. JUSTICE ALITO imagines a number of ways that Christus may have become aware of Doe 2 or Doe 3’s abortion practice. See post, at 17–18, and n. 10 (dissenting opinion). The State apparently did not see fit to test these theories or probe the doctors’ accounts on cross-examination, however. And the District Court’s finding of good faith is plainly permissible on the record before us. Finally, the Court of Appeals faulted Doe 2 for failing to apply to Minden Hospital. The record also explains that decision. Minden subjects all new appointees to \"not less than\" six months of \"focused professional practice evaluation.\" Record 9281; see also id., at 9252. That evaluation requires an assessment of the provider’s in-hospital work. See supra, at 22. Doe 2 could not meet that requirement because, as we have said, Doe 2 does not do in-hospital work, and only two of his patients in the past five years have required hospitalization. App. 400. Moreover, Minden’s bylaws express a preference for applicants whom \"members of the current Active Staff of the Hospital\" have recommended. Id., at 1211. Doe 2 testified that Minden Hospital was \"a smaller hospital,\" \"very close to the [geographic] limits,\" where he \"[did]n’t really know anyone.\" Id., at 454. He applied to those hospitals where he believed he had the highest likelihood of success. Ibid. Given this evidence, the Fifth Circuit was wrong to conclude that the District Court’s findings in respect to Doe 2 were \"clearly erroneous.\" See Anderson, 470 U. S., at 575. Doe 5 The District Court found that Doe 5 was unable to obtain admitting privileges at three hospitals in range of his Baton Rouge clinic in spite of his good-faith efforts to satisfy each hospital’s requirement that he find a covering physician. 250 F. Supp. 3d, at 76; see App. 1334–1335 (Women’s Hospital); Record 2953 (Baton Rouge General), 10659–10661 (Lane Regional). The Court of Appeals disagreed. It thought that Doe 5’s efforts reflected a \"lackluster approach\" because he asked only one doctor to cover him. 905 F. 3d, at 809. The record shows, however, that Doe 5 asked the doctor most likely to respond affirmatively: the doctor with whom Doe 5’s Baton Rouge clinic already had a patient transfer agreement. App. 1135. Yet Doe 5 testified that even this doctor was \"too afraid to be my covering physician at the hospital\" because, while the transfer agreement could apparently be \"kept confidential,\" he feared that an agreement to serve as a covering physician would not remain a secret. Id., at 1135–1136. And, if the matter became well known, the doctor whom Doe 5 asked worried that it could make him a target of threats and protests. Ibid. Doe 5 was familiar with the problem. Anti-abortion protests had previously forced him to leave his position as a staff member of a hospital northeast of Baton Rouge. Id., at 1137–1138, 1330. And activists had picketed the school attended by the children of a former colleague, who then stopped performing abortions as a result. Record 14036– 14037. With his own experience and their existing relationship in mind, Doe 5 could have reasonably thought that, if this doctor wouldn’t serve as his covering physician, no one would. And it was well within the District Court’s discretion to credit that reading of the record. Cf. Cooper, 581 U. S., at ___ (slip op., at 4). Doe 5’s testimony was internally consistent and consistent with what the District Court called the \"mountain of un-contradicted and un-objected to evidence\" in the record that supported its general finding \"that opposition to abortion can present a major, if not insurmountable hurdle, for an applicant getting the required covering physician,\" including Doe 3’s similar experience. 250 F. Supp. 3d, at 51, 49; see id., at 51–53; App. 200–202. The Court of Appeals did not address this general finding or the evidence the District Court relied on to support it, and neither do our dissenting colleagues. Cf. post, at 20–21 (opinion of ALITO, J.); post, at 12 (opinion of GORSUCH, J.). The Court of Appeals pointed to what it described as Doe 4’s testimony that \"finding a covering physician is not overly burdensome.\" 905 F. 3d, at 809. Doe 4’s actual testimony was that he did not believe requiring doctors to obtain a covering physician was \"an overburdensome requirement for admitting privileges.\" Record 14154. In context, that statement is most naturally read as saying that such a requirement was reasonable, not that it was easy to fulfill. In fact, Doe 4 testified that he had been unable to apply to two hospitals for admitting privileges because he could not find a covering physician. Id., at 14154–14155. Moreover, Doe 4’s statement referred to his efforts to obtain admitting privileges in New Orleans, not in Baton Rouge. Ibid. Doe 5 testified that he could more easily find a covering physician in New Orleans (where he did obtain privileges) because attitudes toward abortion there were less hostile than in Baton Rouge, so the doctors’ testimony would be consistent even under the Fifth Circuit’s view. App. 1335–1336. Once again, the appeals court’s conclusion cannot be squared with the standard of review. Cf. Anderson, 470 U. S., at 575. Doe 6 Finally, the District Court found that, notwithstanding his good-faith efforts, Doe 6 would not be able to obtain admitting privileges within 30 miles of the clinic in New Orleans where he worked. The Court of Appeals did not question Doe 6’s decision not to apply to Tulane Hospital. Nor did it take issue with the District Court’s finding that his application to East Jefferson Hospital had been denied de facto through no fault of his own. 250 F. Supp. 3d, at 77; App. 54. But the appeals court reversed the District Court’s finding on the ground that Doe 6 should have (but did not) apply for admitting privileges at seven other hospitals in New Orleans, including Touro Hospital, which had granted limited privileges to Doe 5. 905 F. 3d, at 809–810. Doe 6 testified that he did not apply to other hospitals because he did not admit a sufficient number of patients to receive active admitting privileges. App. 1310. As we have explained, supra, at 21–22, Doe 6 provides only medication abortions involving no surgical intervention. See App. 1308. The State’s own admitting-privileges expert, Dr. Robert Marier, testified that a doctor in Doe 6’s position would \"probably not\" be able to obtain \"active admitting and surgical privileges\" at any hospital. Id., at 884; see 250 F. Supp. 3d, at 44 (finding Dr. Marier \"generally well qualified\" to express an opinion on \"the issue of admitting privileges and hospital credentialing\"). The record contains the bylaws of four of the seven hospitals to which the Court of Appeals referred. All four directly support the testimony of Doe 6 and the State’s expert. Three hospitals require doctors who receive admitting privileges to undergo a process of \"focused professional practice evaluation.\" See Record 2635, 2637, 2681 (Touro Hospital), 9054 (New Orleans East Hospital), 10755 (East Jefferson Hospital). As we have explained, this evaluation requires hospital staff to observe a doctor with admitting privileges while he or she performs a certain number of procedures. See supra, at 22. If the doctor admits no patients (and Doe 6 has no patients requiring admission), there is nothing to observe. Another hospital requires physicians to admit a minimum number of patients, either initially or after receiving admitting privileges. Record 9150–9153 (West Jefferson Hospital). And one requires both. Id., at 9040, 9069 (New Orleans East Hospital). The record apparently is silent as to the remaining three hospitals, but that silence cannot contradict the well-supported testimony of Doe 6 and the State’s expert that Doe 6 would not receive admitting privileges from any of them. Good faith does not require an exercise in futility. We recognize that Doe 5 was able to secure limited admitting privileges at Touro Hospital, to which Doe 6 did not apply. But, unlike Doe 6, Doe 5 primarily performs surgical abortions. App. 1330. And while Doe 5 was a hospitalbased physician as recently as 2012, Doe 6 has not held privileges at any hospital since 2005. Id., at 1310, 1329. Doe 5’s success therefore does not directly contradict the evidence that we have described in respect to Doe 6 or render the District Court’s conclusion as to Doe 6 clearly erroneous. And, as we have said, \"[a] finding that is ‘plausible’ in light of the full record—even if another is equally or more so—must govern.\" Cooper, 581 U. S., at ___ (slip op., at 4). Without actually disputing any of the evidence we have discussed, JUSTICE ALITO maintains that the plaintiffs could have introduced still more evidence to support the District Court’s determination. See post, at 20. As we have said, however, \"the trial on the merits should be ‘the \"main event\" . . . rather than a \"tryout on the road.\"’\" Anderson, 470 U. S., at 575. \"[T]he parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level\"—let alone another nine in this Court—\"is requiring too much.\" Ibid. Other Doctors Finally, JUSTICE ALITO and JUSTICE GORSUCH suggest that the District Court failed to account for the possibility that new abortion providers might eventually replace Does 1, 2, 3, 5, and 6. See post, at 11–12 (opinion of ALITO, J.); post, at 11–13 (opinion of GORSUCH, J.). But the Court of Appeals did not dispute, and the record supports, the District Court’s additional finding that, for \"the same reasons that Does 1, 2, 4, 5, and 6 have had difficulties getting active admitting privileges, reasons unrelated to their competence . . . it is unlikely that the [a]ffected clinics will be able to comply with the Act by recruiting new physicians who have or can obtain admitting privileges.\" 250 F. Supp.3d, at 82. B Act 620’s Impact on Abortion Access The District Court drew from the record evidence, including the factual findings we have just discussed, several conclusions in respect to the burden that Act 620 is likely to impose upon women’s ability to access abortions in Louisiana. To better understand the significance of these conclusions, the reader should keep in mind the geographic distribution of the doctors and their clinics. Figure 1 shows the distribution of doctors and clinics at the time of the District Court’s decision. Figure 2 shows the projected distribution if the admitting-privileges requirement were enforced, as found by the District Court. The figures in parentheses indicate the approximate number of abortions each physician performed annually, according to the District Court. Enforcement of Act 620 1 As we have seen, enforcing the admitting-privileges requirement would eliminate Does 1, 2, and 6. The District Court credited Doe 3’s uncontradicted, in-court testimony that he would stop performing abortions if he was the last provider in northern Louisiana. 250 F. Supp. 3d, at 79; see App. 263–265. So the departure of Does 1 and 2 would also eliminate Doe 3. That would leave only Doe 5. And Doe 5’s inability to obtain privileges in the Baton Rouge area would leave Louisiana with just one clinic with one provider to serve the 10,000 women annually who seek abortions in the State. 250 F. Supp. 3d, at 80, 87–88; cf. Whole Woman’s Health, 579 U. S., at ___ (slip op., at 26). Working full time in New Orleans, Doe 5 would be able to absorb no more than about 30% of the annual demand for abortions in Louisiana. App. 1134, 1331; see id., at 1129. And because Doe 5 does not perform abortions beyond 18 weeks, women between 18 weeks and the state legal limit of 20 weeks would have little or no way to exercise their constitutional right to an abortion. Id., at 1330–1331. Those women not altogether prevented from obtaining an abortion would face other burdens. As in Whole Woman’s Health, the reduction in abortion providers caused by Act 620 would inevitably mean \"longer waiting times, and increased crowding.\" 579 U. S., at ___ (slip op., at 26). The District Court heard testimony that delays in obtaining an abortion increase the risk that a woman will experience complications from the procedure and may make it impossible for her to choose a noninvasive medication abortion. App. 220, 290, 312–313; see also id., at 1139, 1305, 1313, 1316, 1323. Even if they obtain an appointment at a clinic, women who might previously have gone to a clinic in Baton Rouge or Shreveport would face increased driving distances. New Orleans is nearly a five hour drive from Shreveport; it is over an hour from Baton Rouge; and Baton Rouge is more than four hours from Shreveport. The impact of those increases would be magnified by Louisiana’s requirement that every woman undergo an ultrasound and receive mandatory counseling at least 24 hours before an abortion. La. Rev. Stat. Ann. §40:1061.10(D). A Shreveport resident seeking an abortion who might previously have obtained care at one of that city’s local clinics would either have to spend nearly 20 hours driving back and forth to Doe 5’s clinic twice, or else find overnight lodging in New Orleans. As the District Court stated, both experts and laypersons testified that the burdens of this increased travel would fall disproportionately on poor women, who are least able to absorb them. App. 106–107, 178, 502–508, 543; see also id., at 311–312. 2 We note that the Court of Appeals also faulted the District Court for factoring Doe 3’s departure into its calculations. The appeals court thought that Doe 3’s personal choice to stop practicing could not be attributed to Act 620. 905 F. 3d, at 810–811. That is beside the point. Even if we pretended as though (contrary to the record evidence) Doe 3 would continue to provide abortions at Shreveport-based Hope Clinic, the record nonetheless supports the District Court’s alternative finding that Act 620’s burdens would remain substantial. See 250 F. Supp. 3d, at 80–81, 84, 87. The record tells us that Doe 3 is presently able to see roughly 1,000–1,500 women annually. Id., at 81; see App. 207, 243–244. Doe 3 testified that this was in addition to \"working very, very long hours maintaining [his] private [OB/GYN] practice.\" Id., at 265, 1323; see id., at 118, 1147. And, the District Court found that Doe 5 can perform no more than roughly 3,000 abortions annually. See supra, at 33. So even if Doe 3 remained active in Shreveport, the annual demand for abortions in Louisiana would be more than double the capacity. And although the availability of abortions in Shreveport might lessen the driving distances faced by some women, it would still leave thousands of Louisiana women with no practical means of obtaining a safe, legal abortion, and it would not meaningfully address the health risks associated with crowding and delay for those able to secure an appointment with one of the State’s two remaining providers. Taken together, we think that these findings and the evidence that underlies them are sufficient to support the District Court’s conclusion that Act 620 would place substantial obstacles in the path of women seeking an abortion in Louisiana. Benefits We turn finally to the law’s asserted benefits. The District Court found that there was \"‘no significant health-related problem that the new law helped to cure.’\" 250 F. Supp. 3d, at 86 (quoting Whole Woman’s Health, 579 U. S., at ___ (slip op., at 22)). It found that the admittingprivileges requirement \"[d]oes [n]ot [p]rotect [w]omen’s [h]ealth,\" provides \"no significant health benefits,\" and makes no improvement to women’s health \"compared to prior law.\" 250 F. Supp. 3d, at 86 (boldface deleted). Our examination of the record convinces us that these findings are not \"clearly erroneous.\" First, the District Court found that the admitting-privileges requirement serves no \"relevant credentialing function.\" Id., at 87 (quoting Whole Woman’s Health, 579 U. S., at ___ (slip op., at 25)). As we have seen, hospitals can, and do, deny admitting privileges for reasons unrelated to a doctor’s ability safely to perform abortions. And Act 620’s requirement that physicians obtain privileges at a hospital within 30 miles of the place where they perform abortions further constrains providers for reasons that bear no relationship to competence. Moreover, while \"competency is a factor\" in credentialing decisions, 250 F. Supp. 3d, at 46, hospitals primarily focus upon a doctor’s ability to perform the inpatient, hospitalbased procedures for which the doctor seeks privileges—not outpatient abortions. App. 877, 1373; see id., at 907; Brief for Medical Staff Professionals as Amici Curiae 26; Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 12. Indeed, the State’s admitting-privileges expert, Dr. Robert Marier, testified that, when he served as the Executive Director of Louisiana’s Board of Medical Examiners, he concurred in the Board’s position that a physician was competent to perform first-trimester surgical abortions and to \"recognize and address complications from the procedure\" so long as they had completed an accredited residency in obstetrics and gynecology or been trained in abortion procedures during another residency— irrespective of their affiliation with any hospital. App. 872– 873, 1305; cf. post, at 5–6 (ALITO, J., dissenting). And nothing in the record indicates that the background vetting for admitting privileges adds significantly to the vetting that the State Board of Medical Examiners already provides. 250 F. Supp. 3d, at 87; App. 1355–1356, 1358–1359. Second, the District Court found that the admitting-privileges requirement \"does not conform to prevailing medical standards and will not improve the safety of abortion in Louisiana.\" 250 F. Supp. 3d, at 64; see id., at 64–66. As in Whole Woman’s Health, the expert and lay testimony presented at trial shows that: \"Complications from surgical abortion are relatively rare,\" and \"[t]hey very rarely require transfer to a hospital or emergency room and are generally not serious.\" App. 287; see id., at 129; cf. Whole Woman’s Health, 579 U. S., at ___ (slip op., at 22– 23). For those patients who do experience complications at the clinic, the transfer agreement required by existing law is \"sufficient to ensure continuity of care for patients in an emergency.\" App. 1050; see id., at 194, 330–332, 1059. The \"standard protocol\" when a patient experiences a complication after returning home from the clinic is to send her \"to the hospital that is nearest and able to provide the service that the patient needs,\" which is not necessarily a hospital within 30 miles of the clinic. Id., at 351; see id., at 115–116, 180, 793; La. Rev. Stat. Ann. §40:1061.10(A)(2)(b)(ii) (requiring abortion providers to furnish patients with the name and telephone number of the hospital nearest to their home); cf. Whole Woman’s Health, 579 U. S., at ___ (slip op., at 23). As in Whole Woman’s Health, the State introduced no evidence \"showing that patients have better outcomes when their physicians have admitting privileges\" or \"of any instance in which an admitting privileges requirement would have helped even one woman obtain better treatment.\" 250 F. Supp. 3d, at 64; Whole Woman’s Health, 579 U. S., at ___ – ___ (slip op., at 23–24); see also Centers for Medicare and Medicaid Services, 84 Fed. Reg. 51790–51791 (2019) (\"Under modern procedures, emergency responders (and patients themselves) take patients to hospital emergency rooms without regard to prior agreements between particular physicians and particular hospitals\"); Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 6 (local admitting-privileges requirements for abortion providers offer no medical benefit and do not meaningfully advance continuity of care). VI Conclusion We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is \"clearly erroneous.\" Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a \"substantial obstacle\" to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an \"undue burden\" on a woman’s constitutional right to choose to have an abortion. We also agree with its ultimate legal conclusion that, in light of these findings and our precedents, Act 620 violates the Constitution. As a postscript, we explain why we have found unconvincing several further arguments that the State has made. First, the State suggests that the record supports the Court of Appeals’ conclusion that Act 620 poses no substantial obstacle to the abortion decision. See Brief for Respondent 73, 80. This argument misconceives the question before us. \"The question we must answer\" is \"not whether the [Fifth] Circuit’s interpretation of the facts was clearly erroneous, but whether the District Court’s finding[s were] clearly erroneous.\" Anderson, 470 U. S., at 577 (emphasis added). As we have explained, we think the District Court’s factual findings here are plausible in light of the record as a whole. Nothing in the State’s briefing furnishes a basis to disturb that conclusion. Second, the State says that the record does not show that Act 620 will burden every woman in Louisiana who seeks an abortion. Brief for Respondent 69–70 (citing United States v. Salerno, 481 U. S. 739, 745 (1987)). True, but beside the point. As we stated in Casey, a State’s abortionrelated law is unconstitutional on its face if \"it will operate as a substantial obstacle to a woman’s choice to undergo an abortion\" in \"a large fraction of the cases in which [it] is relevant.\" 505 U. S., at 895 (majority opinion). In Whole Woman’s Health, we reaffirmed that standard. We made clear that the phrase refers to a large fraction of \"those women for whom the provision is an actual rather than an irrelevant restriction.\" 579 U. S., at ___ (slip op., at 39) (quoting Casey, 505 U. S., at 895; brackets omitted). That standard, not an \"every woman\" standard, is the standard that must govern in this case. Third, the State argues that Act 620 would not make it \"nearly impossible\" for a woman to obtain an abortion. Brief for Respondent 71–72. But, again, the words \"nearly impossible\" do not describe the legal standard that governs here. Since Casey, we have repeatedly reiterated that the plaintiff ’s burden in a challenge to an abortion regulation is to show that the regulation’s \"purpose or effect\" is to \"plac[e] a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.\" 505 U. S., at 877 (plurality opinion); see Whole Woman’s Health, 579 U. S., at ___ (slip op., at 8); Gonzales, 550 U. S., at 156; Stenberg, 530 U. S., at 921; Mazurek, 520 U. S., at 971. Finally, the State makes several arguments about the standard of review that it would have us apply in cases where a regulation is found not to impose a substantial obstacle to a woman’s choice. Brief for Respondent 60–66. That, however, is not this case. The record here establishes that Act 620’s admitting-privileges requirement places a substantial obstacle in the path of a large fraction of those women seeking an abortion for whom it is a relevant restriction. This case is similar to, nearly identical with, Whole Woman’s Health. And the law must consequently reach a similar conclusion. Act 620 is unconstitutional. The Court of Appeals’ judgment is erroneous. It is Reversed."},
{"docket_number": "19-7", "syllabus": "In the wake of the 2008 financial crisis, Congress established the Consumer Financial Protection Bureau (CFPB), an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent. See Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), 124 Stat. 1376. Congress transferred the administration of 18 existing federal statutes to the CFPB, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Truth in Lending Act; and Congress enacted a new prohibition on unfair and deceptive practices in the consumer-finance sector. 12 U. S. C. §5536(a)(1)(B). In doing so, Congress gave the CFPB extensive rulemaking, enforcement, and adjudicatory powers, including the authority to conduct investigations, issue subpoenas and civil investigative demands, initiate administrative adjudications, prosecute civil actions in federal court, and issue binding decisions in administrative proceedings. The CFPB may seek restitution, disgorgement, injunctive relief, and significant civil penalties for violations of the 19 federal statutes under its purview. So far, the agency has obtained over $11 billion in relief for more than 25 million consumers. Unlike traditional independent agencies headed by multimember boards or commissions, the CFPB is led by a single Director, §5491(b)(1), who is appointed by the President with the advice and consent of the Senate, §5491(b)(2), for a five-year term, during which the President may remove the Director only for \"inefficiency, neglect of duty, or malfeasance in office,\" §§5491(c)(1), (3). The CFPB receives its funding outside the annual appropriations process from the Federal Reserve, which is itself funded outside the appropriations process through bank assessments. In 2017, the CFPB issued a civil investigative demand to Seila Law LLC, a California-based law firm that provides debt-related legal services to clients. The civil investigative demand (essentially a subpoena) sought information and documents related to the firm’s business practices. Seila Law asked the CFPB to set aside the demand on the ground that the agency’s leadership by a single Director removable only for cause violated the separation of powers. When the CFPB declined, Seila Law refused to comply with the demand, and the CFPB filed a petition to enforce the demand in District Court. Seila Law renewed its claim that the CFPB’s structure violated the separation of powers, but the District Court disagreed and ordered Seila Law to comply with the demand. The Ninth Circuit affirmed, concluding that Seila Law’s challenge was foreclosed by Humphrey’s Executor v. United States, 295 U. S. 602, and Morrison v. Olson, 487 U. S. 654. Held: The judgment is vacated and remanded. 923 F. 3d 680, vacated and remanded. THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I, II, and III, concluding: 1. Appointed amicus raises three threshold arguments for why this Court may not or should not reach the merits of petitioner’s constitutional challenge, but they are unavailing. Pp. 8–11. 2. The CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers. Pp. 11–30. (a) Article II vests the entire \"executive Power\" in the President alone, but the Constitution presumes that lesser executive officers will assist the President in discharging his duties. The President’s executive power generally includes the power to supervise—and, if necessary, remove—those who exercise the President’s authority on his behalf. The President’s removal power has long been confirmed by history and precedent. It was recognized by the First Congress in 1789, confirmed by this Court in Myers v. United States, 272 U. S. 52, and reiterated in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477. In Free Enterprise Fund, the Court recognized that it had previously upheld certain congressional limits on the President’s removal power. But the Court declined to extend those limits to \"a new situation not yet encountered by the Court.\" 561 U. S., at 483. Free Enterprise Fund left in place only two exceptions to the President’s unrestricted removal power. First, Humphrey’s Executor permitted Congress to give for-cause removal protection to a multimember body of experts who were balanced along partisan lines, appointed to staggered terms, performed only \"quasi-legislative\" and \"quasi-judicial functions,\" and were said not to exercise any executive power. Second, Morrison approved for-cause removal protection for an inferior officer—the independent counsel—who had limited duties and no policymaking or administrative authority. Pp. 11–16. (b) Neither Humphrey’s Executor nor Morrison resolves whether the CFPB Director’s insulation from removal is constitutional. The New Deal-era FTC upheld in Humphrey’s Executor bears little resemblance to the CFPB. Unlike the multiple Commissioners of the FTC, who were balanced along partisan lines and served staggered terms to ensure the accumulation of institutional knowledge, the CFPB Director serves a five-year term that guarantees abrupt shifts in leadership and the loss of agency expertise. In addition, the Director cannot be dismissed as a mere legislative or judicial aid. Rather, the Director possesses significant administrative and enforcement authority, including the power to seek daunting monetary penalties against private parties in federal court—a quintessentially executive power not considered in Humphrey’s Executor. The logic of Morrison also does not apply. The independent counsel approved in Morrison was an inferior officer who lacked policymaking or administrative authority and exercised narrow authority to initiate criminal investigations and prosecutions of Governmental actors identified by others. By contrast, the CFPB Director is a principal officer whose duties are far from limited. The Director promulgates binding rules fleshing out 19 consumer-protection statutes that cover everything from credit cards and car payments to mortgages and student loans. And the Director brings the coercive power of the state to bear on millions of private citizens and businesses, imposing potentially billion-dollar penalties through administrative adjudications and civil actions. The question here is therefore whether to extend the Humphrey’s Executor and Morrison exceptions to a \"new situation.\" Free Enterprise Fund, 561 U. S., at 433. Pp. 16–18. (c) The Court declines to extend these precedents to an independent agency led by a single Director and vested with significant executive power. Pp. 18–30. (1) The CFPB’s structure has no foothold in history or tradition. Congress has provided removal protection to principal officers who alone wield power in only four isolated instances: the Comptroller of the Currency (for a one-year period during the Civil War); the Office of Special Counsel; the Administrator of the Social Security Administration; and the Director of the Federal Housing Finance Agency. Aside from the one-year blip for the Comptroller of the Currency, these examples are modern and contested; and they do not involve regulatory or enforcement authority comparable to that exercised by the CFPB. Pp. 18–21. (2) The CFPB’s single-Director configuration is also incompatible with the structure of the Constitution, which—with the sole exception of the Presidency—scrupulously avoids concentrating power in the hands of any single individual. The Framers’ constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials may wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President. The CFPB’s single-Director structure contravenes this carefully calibrated system by vesting significant governmental power in the hands of a single individual who is neither elected by the people nor meaningfully controlled (through the threat of removal) by someone who is. The Director may unilaterally, without meaningful supervision, issue final regulations, oversee adjudications, set enforcement priorities, initiate prosecutions, and determine what penalties to impose on private parties. And the Director may do so without even having to rely on Congress for appropriations. While the CFPB’s independent, single-Director structure is sufficient to render the agency unconstitutional, the Director’s five-year term and receipt of funds outside the appropriations process heighten the concern that the agency will \"slip from the Executive’s control, and thus from that of the people.\" Free Enterprise Fund, 561 U. S., at 499. Pp. 21–25. (3) Amicus raises three principal arguments in the agency’s defense. First, amicus challenges the textual basis for the President’s removal power and highlights statements from individual Framers expressing divergent views on the subject. This Court’s precedents, however, make clear that the President’s removal power derives from the \"executive Power\" vested exclusively in the President by Article II. And this Court has already discounted the founding-era statements cited by amicus in light of their context. Second, amicus claims that Humphrey’s Executor and Morrison establish a general rule that Congress may freely constrain the President’s removal power, with only two limited exceptions not applicable here. But text, first principles, the First Congress’s decision in 1789, Myers, and Free Enterprise Fund all establish that the President’s removal power is the rule, not the exception. Finally, amicus submits that this Court can cure any constitutional defect in the CFPB’s structure by interpreting the language \"inefficiency, neglect of duty, or malfeasance in office,\" 12 U. S. C. §5491(c)(3), to reserve substantial discretion to the President. But Humphrey’s Executor implicitly rejected this position, and the CFPB’s defenders have not advanced any workable standard derived from the statutory text. Nor have they explained how a lenient removal standard can be squared with the Dodd-Frank Act as a whole, which makes plain that the CFPB is an \"independent bureau.\" §5491(a). The dissent advances several additional arguments in the agency’s defense, but they have already been expressly considered and rejected by the Court in Free Enterprise Fund. Pp. 25–30. THE CHIEF JUSTICE, joined by JUSTICE ALITO and JUSTICE KAVANAUGH, concluded in Part IV that the Director’s removal protection is severable from the other provisions of the Dodd-Frank Act that establish the CFPB and define its authority. Pp. 30–37.", "opinion": "In the wake of the 2008 financial crisis, Congress established the Consumer Financial Protection Bureau (CFPB), an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent. In organizing the CFPB, Congress deviated from the structure of nearly every other independent administrative agency in our history. Instead of placing the agency under the leadership of a board with multiple members, Congress provided that the CFPB would be led by a single Director, who serves for a longer term than the President and cannot be removed by the President except for inefficiency, neglect, or malfeasance. The CFPB Director has no boss, peers, or voters to report to. Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U. S. economy. The question before us is whether this arrangement violates the Constitution’s separation of powers. Under our Constitution, the \"executive Power\"—all of it—is \"vested in a President,\" who must \"take Care that the Laws be faithfully executed.\" Art. II, §1, cl. 1; id., §3. Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. Ten years ago, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 (2010), we reiterated that, \"as a general matter,\" the Constitution gives the President \"the authority to remove those who assist him in carrying out his duties,\" id., at 513–514. \"Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.\" Id., at 514. The President’s power to remove—and thus supervise— those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States, 272 U. S. 52 (1926). Our precedents have recognized only two exceptions to the President’s unrestricted removal power. In Humphrey’s Executor v. United States, 295 U. S. 602 (1935), we held that Congress could create expert agencies led by a group of principal officers removable by the President only for good cause. And in United States v. Perkins, 116 U. S. 483 (1886), and Morrison v. Olson, 487 U. S. 654 (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties. We are now asked to extend these precedents to a new configuration: an independent agency that wields significant executive power and is run by a single individual who cannot be removed by the President unless certain statutory criteria are met. We decline to take that step. While we need not and do not revisit our prior decisions allowing certain limitations on the President’s removal power, there are compelling reasons not to extend those precedents to the novel context of an independent agency led by a single Director. Such an agency lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control. We therefore hold that the structure of the CFPB violates the separation of powers. We go on to hold that the CFPB Director’s removal protection is severable from the other statutory provisions bearing on the CFPB’s authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will. I A In the summer of 2007, then-Professor Elizabeth Warren called for the creation of a new, independent federal agency focused on regulating consumer financial products. Warren, Unsafe at Any Rate, Democracy (Summer 2007). Professor Warren believed the financial products marketed to ordinary American households—credit cards, student loans, mortgages, and the like—had grown increasingly unsafe due to a \"regulatory jumble\" that paid too much attention to banks and too little to consumers. Ibid. To remedy the lack of \"coherent, consumer-oriented\" financial regulation, she proposed \"concentrat[ing] the review of financial products in a single location\"—an independent agency modeled after the multimember Consumer Product Safety Commission. Ibid. That proposal soon met its moment. Within months of Professor Warren’s writing, the subprime mortgage market collapsed, precipitating a financial crisis that wiped out over $10 trillion in American household wealth and cost millions of Americans their jobs, their retirements, and their homes. In the aftermath, the Obama administration embraced Professor Warren’s recommendation. Through the Treasury Department, the administration encouraged Congress to establish an agency with a mandate to ensure that \"consumer protection regulations\" in the financial sector \"are written fairly and enforced vigorously.\" Dept. of Treasury, Financial Regulatory Reform: A New Foundation 55 (2009). Like Professor Warren, the administration envisioned a traditional independent agency, run by a multimember board with a \"diverse set of viewpoints and experiences.\" Id., at 58. In 2010, Congress acted on these proposals and created the Consumer Financial Protection Bureau (CFPB) as an independent financial regulator within the Federal Reserve System. Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), 124 Stat. 1376. Congress tasked the CFPB with \"implement[ing]\" and \"enforc[ing]\" a large body of financial consumer protection laws to \"ensur[e] that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive.\" 12 U. S. C. §5511(a). Congress transferred the administration of 18 existing federal statutes to the CFPB, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Truth in Lending Act. See §§5512(a), 5481(12), (14). In addition, Congress enacted a new prohibition on \"any unfair, deceptive, or abusive act or practice\" by certain participants in the consumer-finance sector. §5536(a)(1)(B). Congress authorized the CFPB to implement that broad standard (and the 18 pre-existing statutes placed under the agency’s purview) through binding regulations. §§5531(a)–(b), 5581(a)(1)(A), (b). Congress also vested the CFPB with potent enforcement powers. The agency has the authority to conduct investigations, issue subpoenas and civil investigative demands, initiate administrative adjudications, and prosecute civil actions in federal court. §§5562, 5564(a), (f ). To remedy violations of federal consumer financial law, the CFPB may seek restitution, disgorgement, and injunctive relief, as well as civil penalties of up to $1,000,000 (inflation adjusted) for each day that a violation occurs. §§5565(a), (c)(2); 12 CFR §1083.1(a), Table (2019). Since its inception, the CFPB has obtained over $11 billion in relief for over 25 million consumers, including a $1 billion penalty against a single bank in 2018. See CFPB, Financial Report of the Consumer Financial Protection Bureau, Fiscal Year 2015, p. 3; CFPB, Bureau of Consumer Financial Protection Announces Settlement With Wells Fargo for Auto-Loan Administration and Mortgage Practices (Apr. 20, 2018). The CFPB’s rulemaking and enforcement powers are coupled with extensive adjudicatory authority. The agency may conduct administrative proceedings to \"ensure or enforce compliance with\" the statutes and regulations it administers. 12 U. S. C. §5563(a). When the CFPB acts as an adjudicator, it has \"jurisdiction to grant any appropriate legal or equitable relief.\" §5565(a)(1). The \"hearing officer\" who presides over the proceedings may issue subpoenas, order depositions, and resolve any motions filed by the parties. 12 CFR §1081.104(b). At the close of the proceedings, the hearing officer issues a \"recommended decision,\" and the CFPB Director considers that recommendation and \"issue[s] a final decision and order.\" §§1081.400(d), 1081.402(b); see also §1081.405. Congress’s design for the CFPB differed from the proposals of Professor Warren and the Obama administration in one critical respect. Rather than create a traditional independent agency headed by a multimember board or commission, Congress elected to place the CFPB under the leadership of a single Director. 12 U. S. C. §5491(b)(1). The CFPB Director is appointed by the President with the advice and consent of the Senate. §5491(b)(2). The Director serves for a term of five years, during which the President may remove the Director from office only for \"inefficiency, neglect of duty, or malfeasance in office.\" §§5491(c)(1), (3). Unlike most other agencies, the CFPB does not rely on the annual appropriations process for funding. Instead, the CFPB receives funding directly from the Federal Reserve, which is itself funded outside the appropriations process through bank assessments. Each year, the CFPB requests an amount that the Director deems \"reasonably necessary to carry out\" the agency’s duties, and the Federal Reserve grants that request so long as it does not exceed 12% of the total operating expenses of the Federal Reserve (inflation adjusted). §§5497(a)(1), (2)(A)(iii), 2(B). In recent years, the CFPB’s annual budget has exceeded half a billion dollars. See CFPB, Fiscal Year 2019: Ann. Performance Plan and Rep., p. 7. B Seila Law LLC is a California-based law firm that provides debt-related legal services to clients. In 2017, the CFPB issued a civil investigative demand to Seila Law to determine whether the firm had \"engag[ed] in unlawful acts or practices in the advertising, marketing, or sale of debt relief services.\" 2017 WL 6536586, *1 (CD Cal., Aug. 25, 2017). See also 12 U. S. C. §5562(c)(1) (authorizing the agency to issue such demands to persons who \"may have any information[] relevant to a violation\" of one of the laws enforced by the CFPB). The demand (essentially a subpoena) directed Seila Law to produce information and documents related to its business practices. Seila Law asked the CFPB to set aside the demand, objecting that the agency’s leadership by a single Director removable only for cause violated the separation of powers. The CFPB declined to address that claim and directed Seila Law to comply with the demand. When Seila Law refused, the CFPB filed a petition to enforce the demand in the District Court. See §5562(e)(1) (creating cause of action for that purpose). In response, Seila Law renewed its defense that the demand was invalid and must be set aside because the CFPB’s structure violated the Constitution. The District Court disagreed and ordered Seila Law to comply with the demand (with one modification not relevant here). The Court of Appeals affirmed. 923 F. 3d 680 (CA9 2019). The Court observed that the \"arguments for and against\" the constitutionality of the CFPB’s structure had already been \"thoroughly canvassed\" in majority, concurring, and dissenting opinions by the en banc Court of Appeals for the District of Columbia Circuit in PHH Corp. v. CFPB, 881 F. 3d 75 (2018), which had rejected a challenge similar to the one presented here. 923 F. 3d, at 682. The Court saw \"no need to re-plow the same ground.\" Ibid. Instead, it provided a brief explanation for why it agreed with the PHH Court’s core holding. The Court took as its starting point Humphrey’s Executor, which had approved for-cause removal protection for the Commissioners of the Federal Trade Commission (FTC). In applying that precedent, the Court recognized that the CFPB wields \"substantially more executive power than the FTC did back in 1935\" and that the CFPB’s leadership by a single Director (as opposed to a multimember commission) presented a \"structural difference\" that some jurists had found \"dispositive.\" 923 F. 3d, at 683–684. But the Court felt bound to disregard those differences in light of our decision in Morrison, which permitted a single individual (an independent counsel) to exercise a core executive power (prosecuting criminal offenses) despite being insulated from removal except for cause. Because the Court found Humphrey’s Executor and Morrison \"controlling,\" it affirmed the District Court’s order requiring compliance with the demand. 923 F. 3d, at 684. We granted certiorari to address the constitutionality of the CFPB’s structure. 589 U. S. ___ (2019). We also requested argument on an additional question: whether, if the CFPB’s structure violates the separation of powers, the CFPB Director’s removal protection can be severed from the rest of the Dodd-Frank Act. Because the Government agrees with petitioner on the merits of the constitutional question, we appointed Paul Clement to defend the judgment below as amicus curiae. He has ably discharged his responsibilities. II We first consider three threshold arguments raised by the appointed amicus for why we may not or should not reach the merits. Each is unavailing. First, amicus argues that the demand issued to petitioner is not \"traceable\" to the alleged constitutional defect because two of the three Directors who have in turn played a role in enforcing the demand were (or now consider themselves to be) removable by the President at will. Brief for Court-Appointed Amicus Curiae 21–24. Amicus highlights the Government’s argument below that the demand, originally issued by former Director Richard Cordray, had been ratified by an acting CFPB Director who, according to the Office of Legal Counsel (OLC), was removable by the President at will. See Brief for Appellee in No. 17–56324 (CA9), pp. 1, 10, 13–19 (citing Designating an Acting Director of the Bureau of Consumer Financial Protection, 41 Op. OLC ___, ___ (Nov. 25, 2017)). Amicus further observes that current CFPB Director Kathleen Kraninger, now responsible for enforcing the demand, agrees with the Solicitor General’s position in this case that her for-cause removal protection is unconstitutional. See Brief for Respondent on Pet. for Cert. 20; Letter from K. Kraninger, CFPB Director, to M. McConnell, Majority Leader, U. S. Senate, p. 2 (Sept. 17, 2019); Letter from K. Kraninger, CFPB Director, to N. Pelosi, Speaker, U. S. House of Representatives, p. 2 (Sept. 17, 2019).1 In amicus’ view, these developments reveal that the demand would have been issued—and would continue to be enforced—even in the absence of the CFPB Director’s removal protection, making the asserted separation of powers dispute \"artificial.\" Brief for Court-Appointed Amicus Curiae 22. Even if that were true, it would not deprive us of jurisdiction. Amicus’ traceability argument appears to challenge petitioner’s Article III standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) (explaining that the plaintiff ’s injury must be \"fairly traceable to the challenged action of the defendant\" (internal quotation marks and alterations omitted)). But amicus’ argument does not cast any doubt on the jurisdiction of the District Court because petitioner is the defendant and did not invoke the Court’s jurisdiction. See Bond v. United States, 564 U. S. 211, 217 (2011) (When the plaintiff has standing, \"Article III does not restrict the opposing party’s ability to object to relief being sought at its expense.\"). It is true that \"standing must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.\" Hollingsworth v. Perry, 570 U. S. 693, 705 (2013) (internal quotation marks omitted). But petitioner’s appellate standing is beyond dispute. Petitioner is compelled to comply with the civil investigative demand and to provide documents it would prefer to withhold, a concrete injury. That injury is traceable to the decision below and would be fully redressed if we were to reverse the judgment of the Court of Appeals and remand with instructions to deny the Government’s petition to enforce the demand. Without engaging with these principles, amicus contends that a litigant wishing to challenge an executive act on the basis of the President’s removal power must show that the challenged act would not have been taken if the responsible official had been subject to the President’s control. See Brief for Court-Appointed Amicus Curiae 21–24. Our precedents say otherwise. We have held that a litigant challenging governmental action as void on the basis of the separation of powers is not required to prove that the Government’s course of conduct would have been different in a \"counterfactual world\" in which the Government had acted with constitutional authority. Free Enterprise Fund, 561 U. S., at 512, n. 12. In the specific context of the President’s removal power, we have found it sufficient that the challenger \"sustain[s] injury\" from an executive act that allegedly exceeds the official’s authority. Bowsher v. Synar, 478 U. S. 714, 721 (1986). Second, amicus contends that the proper context for assessing the constitutionality of an officer’s removal restriction is a contested removal. See Brief for Court-Appointed Amicus Curiae 24–27. While that is certainly one way to review a removal restriction, it is not the only way. Our precedents have long permitted private parties aggrieved by an official’s exercise of executive power to challenge the official’s authority to wield that power while insulated from removal by the President. See Bowsher, 478 U. S., at 721 (lawsuit filed by aggrieved third party in the absence of contested removal); Free Enterprise Fund, 561 U. S., at 487 (same); Morrison, 487 U. S., at 668–669 (defense to subpoena asserted by third party in the absence of contested removal). Indeed, we have expressly \"reject[ed]\" the \"argument that consideration of the effect of a removal provision is not ‘ripe’ until that provision is actually used,\" because when such a provision violates the separation of powers it inflicts a \"here-and-now\" injury on affected third parties that can be remedied by a court. Bowsher, 478 U. S., at 727, n. 5 (internal quotation marks omitted). The Court of Appeals therefore correctly entertained petitioner’s constitutional defense on the merits. Lastly, amicus contends that we should dismiss the case because the parties agree on the merits of the constitutional question and the case therefore lacks \"adverseness.\" Tr. of Oral Arg. 42–43, 45–46. That contention, however, is foreclosed by United States v. Windsor, 570 U. S. 744 (2013). There, we explained that a lower court order that presents real-world consequences for the Government and its adversary suffices to support Article III jurisdiction—even if \"the Executive may welcome\" an adverse order that \"is accompanied by the constitutional ruling it wants.\" Id., at 758. Here, petitioner and the Government disagree about whether petitioner must comply with the civil investigative demand. The lower courts sided with the Government, and the Government has not volunteered to relinquish that victory and withdraw the demand. To the contrary, while the Government agrees that the agency is unconstitutionally structured, it believes it may nevertheless enforce the demand on remand. See infra, at 30. Accordingly, our \"decision will have real meaning\" for the parties. INS v. Chadha, 462 U. S. 919, 939 (1983). And, as in Windsor, any prudential concerns with deciding an important legal question in this posture can be addressed by \"the practice of entertaining arguments made by an amicus when the Solicitor General confesses error with respect to a judgment below,\" which we have done. 570 U. S., at 760. We therefore turn to the merits of petitioner’s constitutional challenge. III We hold that the CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers. A Article II provides that \"[t]he executive Power shall be vested in a President,\" who must \"take Care that the Laws be faithfully executed.\" Art. II, §1, cl. 1; id., §3. The entire \"executive Power\" belongs to the President alone. But because it would be \"impossib[le]\" for \"one man\" to \"perform all the great business of the State,\" the Constitution assumes that lesser executive officers will \"assist the supreme Magistrate in discharging the duties of his trust.\" 30 Writings of George Washington 334 (J. Fitzpatrick ed. 1939). These lesser officers must remain accountable to the President, whose authority they wield. As Madison explained, \"[I]f any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.\" 1 Annals of Cong. 463 (1789). That power, in turn, generally includes the ability to remove executive officials, for it is \"only the authority that can remove\" such officials that they \"must fear and, in the performance of [their] functions, obey.\" Bowsher, 478 U. S., at 726 (internal quotation marks omitted). The President’s removal power has long been confirmed by history and precedent. It \"was discussed extensively in Congress when the first executive departments were created\" in 1789. Free Enterprise Fund, 561 U. S., at 492. \"The view that ‘prevailed, as most consonant to the text of the Constitution’ and ‘to the requisite responsibility and harmony in the Executive Department,’ was that the executive power included a power to oversee executive officers through removal.\" Ibid. (quoting Letter from James Madison to Thomas Jefferson (June 30, 1789), 16 Documentary History of the First Federal Congress 893 (2004)). The First Congress’s recognition of the President’s removal power in 1789 \"provides contemporaneous and weighty evidence of the Constitution’s meaning,\" Bowsher, 478 U. S., at 723 (internal quotation marks omitted), and has long been the \"settled and well understood construction of the Constitution,\" Ex parte Hennen, 13 Pet. 230, 259 (1839). The Court recognized the President’s prerogative to remove executive officials in Myers v. United States, 272 U. S. 52. Chief Justice Taft, writing for the Court, conducted an exhaustive examination of the First Congress’s determination in 1789, the views of the Framers and their contemporaries, historical practice, and our precedents up until that point. He concluded that Article II \"grants to the President\" the \"general administrative control of those executing the laws, including the power of appointment and removal of executive officers.\" Id., at 163–164 (emphasis added). Just as the President’s \"selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible.\" Id., at 117. \"[T]o hold otherwise,\" the Court reasoned, \"would make it impossible for the President . . . to take care that the laws be faithfully executed.\" Id., at 164. We recently reiterated the President’s general removal power in Free Enterprise Fund. \"Since 1789,\" we recapped, \"the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary.\" 561 U. S., at 483. Although we had previously sustained congressional limits on that power in certain circumstances, we declined to extend those limits to \"a new situation not yet encountered by the Court\"—an official insulated by two layers of for-cause removal protection. Id., at 483, 514. In the face of that novel impediment to the President’s oversight of the Executive Branch, we adhered to the general rule that the President possesses \"the authority to remove those who assist him in carrying out his duties.\" Id., at 513–514. Free Enterprise Fund left in place two exceptions to the President’s unrestricted removal power. First, in Humphrey’s Executor, decided less than a decade after Myers, the Court upheld a statute that protected the Commissioners of the FTC from removal except for \"inefficiency, neglect of duty, or malfeasance in office.\" 295 U. S., at 620 (quoting 15 U. S. C. §41). In reaching that conclusion, the Court stressed that Congress’s ability to impose such removal restrictions \"will depend upon the character of the office.\" 295 U. S., at 631. Because the Court limited its holding \"to officers of the kind here under consideration,\" id., at 632, the contours of the Humphrey’s Executor exception depend upon the characteristics of the agency before the Court. Rightly or wrongly, the Court viewed the FTC (as it existed in 1935) as exercising \"no part of the executive power.\" Id., at 628. Instead, it was \"an administrative body\" that performed \"specified duties as a legislative or as a judicial aid.\" Ibid. It acted \"as a legislative agency\" in \"making investigations and reports\" to Congress and \"as an agency of the judiciary\" in making recommendations to courts as a master in chancery. Ibid. \"To the extent that [the FTC] exercise[d] any executive function[,] as distinguished from executive power in the constitutional sense,\" it did so only in the discharge of its \"quasi-legislative or quasi-judicial powers.\" Ibid. (emphasis added).2 The Court identified several organizational features that helped explain its characterization of the FTC as non-executive. Composed of five members—no more than three from the same political party—the Board was designed to be \"non-partisan\" and to \"act with entire impartiality.\" Id., at 624; see id., at 619–620. The FTC’s duties were \"neither political nor executive,\" but instead called for \"the trained judgment of a body of experts\" \"informed by experience.\" Id., at 624 (internal quotation marks omitted). And the Commissioners’ staggered, seven-year terms enabled agency to accumulate technical expertise and avoid a \"complete change\" in leadership \"at any one time.\" Ibid. In short, Humphrey’s Executor permitted Congress to give for-cause removal protections to a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power. Consistent with that understanding, the Court later applied \"[t]he philosophy of Humphrey’s Executor\" to uphold for-cause removal protections for the members of the War Claims Commission—a three-member \"adjudicatory body\" tasked with resolving claims for compensation arising from World War II. Wiener v. United States, 357 U. S. 349, 356 (1958). While recognizing an exception for multimember bodies with \"quasi-judicial\" or \"quasi-legislative\" functions, Humphrey’s Executor reaffirmed the core holding of Myers that the President has \"unrestrictable power . . . to remove purely executive officers.\" 295 U. S., at 632. The Court acknowledged that between purely executive officers on the one hand, and officers that closely resembled the FTC Commissioners on the other, there existed \"a field of doubt\" that the Court left \"for future consideration.\" Ibid. We have recognized a second exception for inferior officers in two cases, United States v. Perkins and Morrison v. Olson.3 In Perkins, we upheld tenure protections for a naval cadet-engineer. 116 U. S., at 485. And, in Morrison, we upheld a provision granting good-cause tenure protection to an independent counsel appointed to investigate and prosecute particular alleged crimes by high-ranking Government officials. 487 U. S., at 662–663, 696–697. Backing away from the reliance in Humphrey’s Executor on the concepts of \"quasi-legislative\" and \"quasi-judicial\" power, we viewed the ultimate question as whether a removal restriction is of \"such a nature that [it] impede[s] the President’s ability to perform his constitutional duty.\" 487 U. S., at 691. Although the independent counsel was a single person and performed \"law enforcement functions that typically have been undertaken by officials within the Executive Branch,\" we concluded that the removal protections did not unduly interfere with the functioning of the Executive Branch because \"the independent counsel [was] an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority.\" Ibid. These two exceptions—one for multimember expert agencies that do not wield substantial executive power, and one for inferior officers with limited duties and no policymaking or administrative authority—\"represent what up to now have been the outermost constitutional limits of permissible congressional restrictions on the President’s removal power.\" PHH, 881 F. 3d, at 196 (Kavanaugh, J., dissenting) (internal quotation marks omitted). B Neither Humphrey’s Executor nor Morrison resolves whether the CFPB Director’s insulation from removal is constitutional. Start with Humphrey’s Executor. Unlike the New Deal-era FTC upheld there, the CFPB is led by a single Director who cannot be described as a \"body of experts\" and cannot be considered \"non-partisan\" in the same sense as a group of officials drawn from both sides of the aisle. 295 U. S., at 624. Moreover, while the terms of the FTC Commissioners prevented complete turnovers in agency leadership and guaranteed that there would always be some Commissioners who had accrued significant expertise, the CFPB’s single-Director structure and five-year term guarantee abrupt shifts in agency leadership and with it the loss of accumulated expertise. In addition, the CFPB Director is hardly a mere legislative or judicial aid. Instead of making reports and recommendations to Congress, as the 1935 FTC did, the Director possesses the authority to promulgate binding rules fleshing out 19 federal statutes, including a broad prohibition on unfair and deceptive practices in a major segment of the U. S. economy. And instead of submitting recommended dispositions to an Article III court, the Director may unilaterally issue final decisions awarding legal and equitable relief in administrative adjudications. Finally, the Director’s enforcement authority includes the power to seek daunting monetary penalties against private parties on behalf of the United States in federal court—a quintessentially executive power not considered in Humphrey’s Executor.4 The logic of Morrison also does not apply. Everyone agrees the CFPB Director is not an inferior officer, and her duties are far from limited. Unlike the independent counsel, who lacked policymaking or administrative authority, the Director has the sole responsibility to administer 19 separate consumer-protection statutes that cover everything from credit cards and car payments to mortgages and student loans. It is true that the independent counsel in Morrison was empowered to initiate criminal investigations and prosecutions, and in that respect wielded core executive power. But that power, while significant, was trained inward to high-ranking Governmental actors identified by others, and was confined to a specified matter in which the Department of Justice had a potential conflict of interest. By contrast, the CFPB Director has the authority to bring the coercive power of the state to bear on millions of private citizens and businesses, imposing even billion-dollar penalties through administrative adjudications and civil actions. In light of these differences, the constitutionality of the CFPB Director’s insulation from removal cannot be settled by Humphrey’s Executor or Morrison alone. C The question instead is whether to extend those precedents to the \"new situation\" before us, namely an independent agency led by a single Director and vested with significant executive power. Free Enterprise Fund, 561 U. S., at 483. We decline to do so. Such an agency has no basis in history and no place in our constitutional structure. 1 \"Perhaps the most telling indication of [a] severe constitutional problem\" with an executive entity \"is [a] lack of historical precedent\" to support it. Id., at 505 (internal quotation marks omitted). An agency with a structure like that of the CFPB is almost wholly unprecedented. After years of litigating the agency’s constitutionality, the Courts of Appeals, parties, and amici have identified \"only a handful of isolated\" incidents in which Congress has provided good-cause tenure to principal officers who wield power alone rather than as members of a board or commission. Ibid. \"[T]hese few scattered examples\"—four to be exact—shed little light. NLRB v. Noel Canning, 573 U. S. 513, 538 (2014). First, the CFPB’s defenders point to the Comptroller of the Currency, who enjoyed removal protection for one year during the Civil War. That example has rightly been dismissed as an aberration. It was \"adopted without discussion\" during the heat of the Civil War and abandoned before it could be \"tested by executive or judicial inquiry.\" Myers, 272 U. S., at 165. (At the time, the Comptroller may also have been an inferior officer, given that he labored \"under the general direction of the Secretary of the Treasury.\" Ch. 58, 12 Stat. 665.)5 Second, the supporters of the CFPB point to the Office of the Special Counsel (OSC), which has been headed by a single officer since 1978.6 But this first enduring single-leader office, created nearly 200 years after the Constitution was ratified, drew a contemporaneous constitutional objection from the Office of Legal Counsel under President Carter and a subsequent veto on constitutional grounds by President Reagan. See Memorandum Opinion for the General Counsel, Civil Service Commission, 2 Op. OLC 120, 122 (1978); Public Papers of the Presidents, Ronald Reagan, Vol. II, Oct. 26, 1988, pp. 1391–1392 (1991). In any event the OSC exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees. See 5 U. S. C. §1212. It does not bind private parties at all or wield regulatory authority comparable to the CFPB. Third, the CFPB’s defenders note that the Social Security Administration (SSA) has been run by a single Administrator since 1994. That example, too, is comparatively recent and controversial. President Clinton questioned the constitutionality of the SSA’s new single-Director structure upon signing it into law. See Public Papers of the Presidents, William J. Clinton, Vol. II, Aug. 15, 1994, pp. 1471–1472 (1995) (inviting a \"corrective amendment\" from Congress). In addition, unlike the CFPB, the SSA lacks the authority to bring enforcement actions against private parties. Its role is largely limited to adjudicating claims for Social Security benefits. The only remaining example is the Federal Housing Finance Agency (FHFA), created in 2008 to assume responsibility for Fannie Mae and Freddie Mac. That agency is essentially a companion of the CFPB, established in response to the same financial crisis. See Housing and Economic Recovery Act of 2008, 122 Stat. 2654. It regulates primarily Government-sponsored enterprises, not purely private actors. And its single-Director structure is a source of ongoing controversy. Indeed, it was recently held unconstitutional by the Fifth Circuit, sitting en banc. See Collins v. Mnuchin, 938 F. 3d 553, 587–588 (2019). With the exception of the one-year blip for the Comptroller of the Currency, these isolated examples are modern and contested. And they do not involve regulatory or enforcement authority remotely comparable to that exercised by the CFPB. The CFPB’s single-Director structure is an innovation with no foothold in history or tradition.8 2 In addition to being a historical anomaly, the CFPB’s single-Director configuration is incompatible with our constitutional structure. Aside from the sole exception of the Presidency, that structure scrupulously avoids concentrating power in the hands of any single individual. \"The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.\" Bowsher, 478 U. S., at 730. Their solution to governmental power and its perils was simple: divide it. To prevent the \"gradual concentration\" of power in the same hands, they enabled \"[a]mbition . . . to counteract ambition\" at every turn. The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison). At the highest level, they \"split the atom of sovereignty\" itself into one Federal Government and the States. Gamble v. United States, 587 U. S. ___, ___ (2019) (slip op., at 9) (internal quotation marks omitted). They then divided the \"powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.\" Chadha, 462 U. S., at 951. They did not stop there. Most prominently, the Framers bifurcated the federal legislative power into two Chambers: the House of Representatives and the Senate, each composed of multiple Members and Senators. Art. I, §§2, 3. The Executive Branch is a stark departure from all this division. The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that \"differences of opinion\" and the \"jarrings of parties\" would \"promote deliberation and circumspection\" and \"check excesses in the majority.\" See The Federalist No. 70, at 475 (A. Hamilton); see also id., No. 51, at 350. By contrast, the Framers thought it necessary to secure the authority of the Executive so that he could carry out his unique responsibilities. See id., No. 70, at 475–478. As Madison put it, while \"the weight of the legislative authority requires that it should be . . . divided, the weakness of the executive may require, on the other hand, that it should be fortified.\" Id., No. 51, at 350. The Framers deemed an energetic executive essential to \"the protection of the community against foreign attacks,\" \"the steady administration of the laws,\" \"the protection of property,\" and \"the security of liberty.\" Id., No. 70, at 471. Accordingly, they chose not to bog the Executive down with the \"habitual feebleness and dilatoriness\" that comes with a \"diversity of views and opinions.\" Id., at 476. Instead, they gave the Executive the \"[d]ecision, activity, secrecy, and dispatch\" that \"characterise the proceedings of one man.\" Id., at 472. To justify and check that authority—unique in our constitutional structure—the Framers made the President the most democratic and politically accountable official in Government. Only the President (along with the Vice President) is elected by the entire Nation. And the President’s political accountability is enhanced by the solitary nature of the Executive Branch, which provides \"a single object for the jealousy and watchfulness of the people.\" Id., at 479. The President \"cannot delegate ultimate responsibility or the active obligation to supervise that goes with it,\" because Article II \"makes a single President responsible for the actions of the Executive Branch.\" Free Enterprise Fund, 561 U. S., at 496–497 (quoting Clinton v. Jones, 520 U. S. 681, 712–713 (1997) (BREYER, J., concurring in judgment)). The resulting constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President. Through the President’s oversight, \"the chain of dependence [is] preserved,\" so that \"the lowest officers, the middle grade, and the highest\" all \"depend, as they ought, on the President, and the President on the community.\" 1 Annals of Cong. 499 (J. Madison). The CFPB’s single-Director structure contravenes this carefully calibrated system by vesting significant governmental power in the hands of a single individual accountable to no one. The Director is neither elected by the people nor meaningfully controlled (through the threat of removal) by someone who is. The Director does not even depend on Congress for annual appropriations. See The Federalist No. 58, at 394 (J. Madison) (describing the \"power over the purse\" as the \"most compleat and effectual weapon\" in representing the interests of the people). Yet the Director may unilaterally, without meaningful supervision, issue final regulations, oversee adjudications, set enforcement priorities, initiate prosecutions, and determine what penalties to impose on private parties. With no colleagues to persuade, and no boss or electorate looking over her shoulder, the Director may dictate and enforce policy for a vital segment of the economy affecting millions of Americans. The CFPB Director’s insulation from removal by an accountable President is enough to render the agency’s structure unconstitutional. But several other features of the CFPB combine to make the Director’s removal protection even more problematic. In addition to lacking the most direct method of Presidential control—removal at will—the agency’s unique structure also forecloses certain indirect methods of Presidential control. Because the CFPB is headed by a single Director with a five-year term, some Presidents may not have any opportunity to shape its leadership and thereby influence its activities. A President elected in 2020 would likely not appoint a CFPB Director until 2023, and a President elected in 2028 may never appoint one. That means an unlucky President might get elected on a consumer-protection platform and enter office only to find herself saddled with a holdover Director from a competing political party who is dead set against that agenda. To make matters worse, the agency’s single-Director structure means the President will not have the opportunity to appoint any other leaders— such as a chair or fellow members of a Commission or Board—who can serve as a check on the Director’s authority and help bring the agency in line with the President’s preferred policies. The CFPB’s receipt of funds outside the appropriations process further aggravates the agency’s threat to Presidential control. The President normally has the opportunity to recommend or veto spending bills that affect the operation of administrative agencies. See Art. I, §7, cl. 2; Art. II, §3. And, for the past century, the President has annually submitted a proposed budget to Congress for approval. See Budget and Accounting Act, 1921, ch. 18, §201, 42 Stat. 20. Presidents frequently use these budgetary tools \"to influence the policies of independent agencies.\" PHH, 881 F. 3d, at 147 (Henderson, J., dissenting) (citing Pasachoff, The President’s Budget as a Source of Agency Policy Control, 125 Yale L. J. 2182, 2191, 2203–2204 (2016)). But no similar opportunity exists for the President to influence the CFPB Director. Instead, the Director receives over $500 million per year to fund the agency’s chosen priorities. And the Director receives that money from the Federal Reserve, which is itself funded outside of the annual appropriations process. This financial freedom makes it even more likely that the agency will \"slip from the Executive’s control, and thus from that of the people.\" Free Enterprise Fund, 561 U. S., at 499.9 3 Amicus raises three principal arguments in the agency’s defense. At the outset, amicus questions the textual basis for the removal power and highlights statements from Madison, Hamilton, and Chief Justice Marshall expressing \"heterodox\" views on the subject. Brief for Court-Appointed Amicus Curiae 4–5, 28–29. But those concerns are misplaced. It is true that \"there is no ‘removal clause’ in the Constitution,\" id., at 1, but neither is there a \"separation of powers clause\" or a \"federalism clause.\" These foundational doctrines are instead evident from the Constitution’s vesting of certain powers in certain bodies. As we have explained many times before, the President’s removal power stems from Article II’s vesting of the \"executive Power\" in the President. Free Enterprise Fund, 561 U. S., at 483 (quoting Art. II, §1, cl. 1). As for the opinions of Madison, Hamilton, and Chief Justice Marshall, we have already considered the statements cited by amicus and discounted them in light of their context (Madison), the fact they reflect initial impressions later abandoned by the speaker (Hamilton), or their subsequent rejection as ill-considered dicta (Chief Justice Marshall). See Free Enterprise Fund, 561 U. S., at 500, n. 6 (Madison); Myers, 272 U. S., at 136–139, 142–144 (Hamilton and Chief Justice Marshall). Next, amicus offers a grand theory of our removal precedents that, if accepted, could leave room for an agency like the CFPB—and many other innovative intrusions on Article II. According to amicus, Humphrey’s Executor and Morrison establish a general rule that Congress may impose \"modest\" restrictions on the President’s removal power, with only two limited exceptions. Brief for Court-Appointed Amicus Curiae 33–37. Congress may not reserve a role for itself in individual removal decisions (as it attempted to do in Myers and Bowsher). And it may not eliminate the President’s removal power altogether (as it effectively did in Free Enterprise Fund). Outside those two situations, amicus argues, Congress is generally free to constrain the President’s removal power. See also post, at 16–22 (KAGAN, J., concurring in judgment with respect to severability and dissenting in part) (hereinafter dissent) (expressing similar view). But text, first principles, the First Congress’s decision in 1789, Myers, and Free Enterprise Fund all establish that the President’s removal power is the rule, not the exception. While we do not revisit Humphrey’s Executor or any other precedent today, we decline to elevate it into a freestanding invitation for Congress to impose additional restrictions on the President’s removal authority.11 Finally, amicus contends that if we identify a constitutional problem with the CFPB’s structure, we should avoid it by broadly construing the statutory grounds for removing the CFPB Director from office. See Brief for Court-Appointed Amicus Curiae 50–53; Tr. of Oral Arg. 57–62. The Dodd-Frank Act provides that the Director may be removed for \"inefficiency, neglect of duty, or malfeasance in office.\" 12 U. S. C. §5491(c)(3). In amicus’ view, that language could be interpreted to reserve substantial discretion to the President. Brief for Court-Appointed Amicus Curiae 51. We are not persuaded. For one, Humphrey’s Executor implicitly rejected an interpretation that would leave the President free to remove an officer based on disagreements about agency policy. See 295 U. S., at 619, 625–626. In addition, while both amicus and the House of Representatives invite us to adopt whatever construction would cure the constitutional problem, they have not advanced any workable standard derived from the statutory language. Amicus suggests that the proper standard might permit removals based on general policy disagreements, but not specific ones; the House suggests that the permissible bases for removal might vary depending on the context and the Presidential power involved. See Tr. of Oral Arg. 58–60, 76–77. They do not attempt to root either of those standards in the statutory text. Further, although nearly identical language governs the removal of some two-dozen multimember independent agencies, amicus suggests that the standard should vary from agency to agency, morphing as necessary to avoid constitutional doubt. Tr. of Oral Arg. 55–56. We decline to embrace such an uncertain and elastic approach to the text. Amicus and the House also fail to engage with the DoddFrank Act as a whole, which makes plain that the CFPB is an \"independent bureau.\" 12 U. S. C. §5491(a); see also 44 U. S. C. §3502(5) (listing the CFPB as an \"independent regulatory agency\"). Neither amicus nor the House explains how the CFPB would be \"independent\" if its head were required to implement the President’s policies upon pain of removal. See Black’s Law Dictionary 838 (9th ed. 2009) (defining \"independent\" as \"[n]ot subject to the control or influence of another\"). The Constitution might of course compel the agency to be dependent on the President notwithstanding Congress’s contrary intent, but that result cannot fairly be inferred from the statute Congress enacted. Constitutional avoidance is not a license to rewrite Congress’s work to say whatever the Constitution needs it to say in a given situation. Without a proffered interpretation that is rooted in the statutory text and structure, and would avoid the constitutional violation we have identified, we take Congress at its word that it meant to impose a meaningful restriction on the President’s removal authority. The dissent, for its part, largely reprises points that the Court has already considered and rejected: It notes the lack of an express removal provision, invokes Congress’s general power to create and define executive offices, highlights isolated statements from individual Framers, downplays the decision of 1789, minimizes Myers, brainstorms methods of Presidential control short of removal, touts the need for creative congressional responses to technological and economic change, and celebrates a pragmatic, flexible approach to American governance. See post, at 1–25, 32–33, 38. If these arguments sound familiar, it’s because they are. They were raised by the dissent in Free Enterprise Fund. Compare post, at 1–25, 32–33, 38, with Free Enterprise Fund, 561 U. S., at 515–524, 530 (BREYER, J., dissenting). The answers to these repeated concerns (beyond those we have already covered) are the same today as they were ten years ago. Today, as then, Congress’s \"plenary control over the salary, duties, and even existence of executive offices\" makes \"Presidential oversight\" more critical—not less—as the \"[o]nly\" tool to \"counter [Congress’s] influence.\" Id., at 500 (opinion of the Court). Today, as then, the various \"bureaucratic minutiae\" a President might use to corral agency personnel is no substitute for at will removal. Ibid. And today, as always, the urge to meet new technological and societal problems with novel governmental structures must be tempered by constitutional restraints that are not known—and were not chosen—for their efficiency or flexibility. Id., at 499. As we explained in Free Enterprise Fund, \"One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts.\" Ibid. While \"[n]o one doubts Congress’s power to create a vast and varied federal bureaucracy,\" the expansion of that bureaucracy into new territories the Framers could scarcely have imagined only sharpens our duty to ensure that the Executive Branch is overseen by a President accountable to the people. Ibid. IV Having concluded that the CFPB’s leadership by a single independent Director violates the separation of powers, we now turn to the appropriate remedy. We directed the parties to brief and argue whether the Director’s removal protection was severable from the other provisions of the DoddFrank Act that establish the CFPB. If so, then the CFPB may continue to exist and operate notwithstanding Congress’s unconstitutional attempt to insulate the agency’s Director from removal by the President. There is a live controversy between the parties on that question, and resolving it is a necessary step in determining petitioner’s entitlement to its requested relief. As the defendant in this action, petitioner seeks a straightforward remedy. It asks us to deny the Government’s petition to enforce the civil investigative demand and dismiss the case. The Government counters that the demand, though initially issued by a Director unconstitutionally insulated from removal, can still be enforced on remand because it has since been ratified by an Acting Director accountable to the President. The parties dispute whether this alleged ratification in fact occurred and whether, if so, it is legally sufficient to cure the constitutional defect in the original demand. That debate turns on case-specific factual and legal questions not addressed below and not briefed here. A remand for the lower Courts to consider those questions in the first instance is therefore the appropriate course—unless such a remand would be futile. In petitioner’s view, it would be. Before the Court of Appeals, petitioner contended that, regardless of any ratification, the demand is unenforceable because the statutory provision insulating the CFPB Director from removal cannot be severed from the other statutory provisions that define the CFPB’s authority. See Brief for Appellant in No. 17–56324 (CA9), pp. 27–28, 30–32. If petitioner is correct, and the offending removal provision means the entire agency is unconstitutional and powerless to act, then a remand would be pointless. With no agency left with statutory authority to maintain this suit or otherwise enforce the demand, the appropriate disposition would be to reverse with instructions to deny the Government’s petition to enforce the agency’s demand for documents and dismiss the case, as petitioner requests. Accordingly, there is a live controversy over the question of severability. And that controversy is essential to our ability to provide petitioner the relief it seeks: If the removal restriction is not severable, then we must grant the relief requested, promptly rejecting the demand outright. If, on the other hand, the removal restriction is severable, we must instead remand for the Government to press its ratification arguments in further proceedings. Unlike the lingering ratification issue, severability presents a pure question of law that has been fully briefed and argued by the parties. We therefore proceed to address it. It has long been settled that \"one section of a statute may be repugnant to the Constitution without rendering the whole act void.\" Loeb v. Columbia Township Trustees, 179 U. S. 472, 490 (1900) (quoting Treasurer of Fayette Cty. v. People’s & Drovers’ Bank, 47 Ohio St. 503, 523, 25 N. E. 697, 702 (1890)). Because a \"statute bad in part is not necessarily void in its entirety,\" \"[p]rovisions within the legislative power may stand if separable from the bad.\" Dorchy v. Kansas, 264 U. S. 286, 289–290 (1924). \"Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.\" Free Enterprise Fund, 561 U. S., at 508 (internal quotation marks omitted). Even in the absence of a severability clause, the \"traditional\" rule is that \"the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.\" Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 685 (1987). When Congress has expressly provided a severability clause, our task is simplified. We will presume \"that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision . . . unless there is strong evidence that Congress intended otherwise.\" Id., at 686. The only constitutional defect we have identified in the CFPB’s structure is the Director’s insulation from removal. If the Director were removable at will by the President, the constitutional violation would disappear. We must therefore decide whether the removal provision can be severed from the other statutory provisions relating to the CFPB’s powers and responsibilities. In Free Enterprise Fund, we found a set of unconstitutional removal provisions severable even in the absence of an express severability clause because the surviving provisions were capable of \"functioning independently\" and \"nothing in the statute’s text or historical context [made] it evident that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will.\" 561 U. S., at 509 (internal quotation marks omitted). So too here. The provisions of the Dodd-Frank Act bearing on the CFPB’s structure and duties remain fully operative without the offending tenure restriction. Those provisions are capable of functioning independently, and there is nothing in the text or history of the Dodd-Frank Act that demonstrates Congress would have preferred no CFPB to a CFPB supervised by the President. Quite the opposite. Unlike the Sarbanes-Oxley Act at issue in Free Enterprise Fund, the Dodd-Frank Act contains an express severability clause. There is no need to wonder what Congress would have wanted if \"any provision of this Act\" is \"held to be unconstitutional\" because it has told us: \"the remainder of this Act\" should \"not be affected.\" 12 U. S. C. §5302. Petitioner urges us to disregard this plain language for three reasons. None is persuasive. First, petitioner dismisses the clause as non-probative \"boilerplate\" because it applies \"to the entire, 848-page Dodd-Frank Act\" and \"appears almost 600 pages before the removal provision at issue.\" Brief for Petitioner 45. In petitioner’s view, that means we cannot be certain that Congress really meant to apply the clause to each of the Act’s provisions. But boilerplate is boilerplate for a reason—because it offers tried-andtrue language to ensure a precise and predictable result. That is the case here. The language unmistakably references \"any provision of this Act.\" 12 U. S. C. §5302 (emphasis added). And it appears in a logical and prominent place, immediately following the Act’s title and definitions sections, reinforcing the conclusion that it applies to the entirety of the Act. Congress was not required to laboriously insert duplicative severability clauses, provision by provision, to accomplish its stated objective. Second, petitioner points to an additional severability clause in the Act that applies only to one of the Act’s subtitles. See 15 U. S. C. §8232. In petitioner’s view, that clause would be superfluous if Congress meant the general severability clause to apply across the Act. But \"our preference for avoiding surplusage constructions is not absolute.\" Lamie v. United States Trustee, 540 U. S. 526, 536 (2004). In this instance, the redundant language appears to reflect the fact that the subtitle to which it refers originated as a standalone bill that was later incorporated into DoddFrank. Compare 15 U. S. C. §8232 with H. R. 2571, 111th Cong., 1st Sess., §302 (2009). And petitioner does not offer any construction that would give effect to both provisions, making the redundancy both inescapable and unilluminating. See Microsoft Corp. v. i4i L. P., 564 U. S. 91, 106 (2011) (\"The canon against superfluity assists only where a competing interpretation gives effect to every clause and word of a statute.\" (internal quotation marks omitted)). Finally, petitioner argues more broadly that Congress would not have wanted to give the President unbridled control over the CFPB’s vast authority. Petitioner highlights the references to the CFPB’s independence in the statutory text and legislative history, as well as in Professor Warren’s and the Obama administration’s original proposals. See Brief for Petitioner 43–44 (collecting examples). And petitioner submits that Congress might not have exempted the CFPB from congressional oversight via the appropriations process if it had known that the CFPB would come under executive control. These observations certainly confirm that Congress preferred an independent CFPB to a dependent one; but they shed little light on the critical question whether Congress would have preferred a dependent CFPB to no agency at all. That is the only question we have the authority to decide, and the answer seems clear. Petitioner assumes that, if we eliminate the CFPB, regulatory and enforcement authority over the statutes it administers would simply revert back to the handful of independent agencies previously responsible for them. See id., at 46. But, as the Solicitor General and House of Representatives explain, that shift would trigger a major regulatory disruption and would leave appreciable damage to Congress’s work in the consumer-finance arena. See Reply Brief for Respondent 21–22; Tr. of Oral Arg. 67–68. One of the agencies whose regulatory authority was transferred to the CFPB no longer exists. See 12 U. S. C. §§5412–5413 (Office of Thrift Supervision). The others do not have the staff or appropriations to absorb the CFPB’s 1,500-employee, 500-million-dollar operations. And none has the authority to administer the Dodd-Frank Act’s new prohibition on unfair and deceptive practices in the consumer-finance sector. Given these consequences, it is far from evident that Congress would have preferred no CFPB to a CFPB led by a Director removable at will by the President. JUSTICE THOMAS would have us junk our settled severability doctrine and start afresh, even though no party has asked us to do so. See post, at 15–16, 21–24 (opinion concurring in part and dissenting in part). Among other things, he objects that it is sheer \"speculation\" that Congress would prefer that its consumer protection laws be enforced by a Director accountable to the President rather than not at all. Post, at 23–24. We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect we identify today. And such an approach by this Court can come as no surprise to Congress, which was on notice of constitutional objections to single-Director agencies by multiple past Presidents from both political parties, supra, at 19–20, and enacted Dodd-Frank against the background of our established severability doctrine. As in every severability case, there may be means of remedying the defect in the CFPB’s structure that the Court lacks the authority to provide. Our severability analysis does not foreclose Congress from pursuing alternative responses to the problem—for example, converting the CFPB into a multimember agency. The Court’s only instrument, however, is a blunt one. We have \"the negative power to disregard an unconstitutional enactment,\" Massachusetts v. Mellon, 262 U. S. 447, 488 (1923); see Marbury v. Madison, 1 Cranch 137, 178 (1803), but we cannot re-write Congress’s work by creating offices, terms, and the like. \"[S]uch editorial freedom . . . belongs to the Legislature, not the Judiciary.\" Free Enterprise Fund, 561 U. S., at 510. Because we find the Director’s removal protection severable from the other provisions of Dodd-Frank that establish the CFPB, we remand for the Court of Appeals to consider whether the civil investigative demand was validly ratified. A decade ago, we declined to extend Congress’s authority to limit the President’s removal power to a new situation, never before confronted by the Court. We do the same today. In our constitutional system, the executive power belongs to the President, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead. While we have previously upheld limits on the President’s removal authority in certain contexts, we decline to do so when it comes to principal officers who, acting alone, wield significant executive power. The Constitution requires that such officials remain dependent on the President, who in turn is accountable to the people. The judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "19-161", "syllabus": "The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provides for the expedited removal of certain \"applicants\" seeking admission into the United States, whether at a designated port of entry or elsewhere. 8 U. S. C. §1225(a)(1). An applicant may avoid expedited removal by demonstrating to an asylum officer a \"credible fear of persecution,\" defined as \"a significant possibility . . . that the alien could establish eligibility for asylum.\" §1225(b)(1)(B)(v). An applicant who makes this showing is entitled to \"full consideration\" of an asylum claim in a standard removal hearing. 8 CFR §208.30(f). An asylum officer’s rejection of a credible-fear claim is reviewed by a supervisor and may then be appealed to an immigration judge. §§208.30(e)(8), 1003.42(c), (d)(1). But IIRIRA limits the review that a federal court may conduct on a petition for a writ of habeas corpus. 8 U. S. C. §1252(e)(2). In particular, courts may not review \"the determination\" that an applicant lacks a credible fear of persecution. §1252(a)(2)(A)(iii). Respondent Vijayakumar Thuraissigiam is a Sri Lankan national who was stopped just 25 yards after crossing the southern border without inspection or an entry document. He was detained for expedited removal. An asylum officer rejected his credible-fear claim, a supervising officer agreed, and an Immigration Judge affirmed. Respondent then filed a federal habeas petition, asserting for the first time a fear of persecution based on his Tamil ethnicity and political views and requesting a new opportunity to apply for asylum. The District Court dismissed the petition, but the Ninth Circuit reversed, holding that, as applied here, §1252(e)(2) violates the Suspension Clause and the Due Process Clause. Held: 1. As applied here, §1252(e)(2) does not violate the Suspension Clause. Pp. 11–33. (a) The Suspension Clause provides that \"[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.\" Art. I, §9, cl. 2. This Court has held that, at a minimum, the Clause \"protects the writ as it existed in 1789,\" when the Constitution was adopted. INS v. St. Cyr, 533 U. S. 289, 301. Habeas has traditionally provided a means to seek release from unlawful detention. Respondent does not seek release from custody, but an additional opportunity to obtain asylum. His claims therefore fall outside the scope of the writ as it existed when the Constitution was adopted. Pp. 11–15. (b) Respondent contends that three bodies of case law support his argument that the Suspension Clause guarantees a broader habeas right, but none do. Pp. 15–33. (1) Respondent first points to British and American cases decided before or around the Constitution’s adoption. All those cases show is that habeas was used to seek release from detention in a variety of circumstances. Respondent argues that some cases show aliens using habeas to remain in a country. But the relief ordered in those cases was simply release; an alien petitioner’s ability to remain in the country was due to immigration law, or lack thereof. The relief that a habeas court may order and the collateral consequences of that relief are two entirely different things. Pp. 15–23. (2) Although respondent claims to rely on the writ as it existed in 1789, his argument focuses on this Court’s decisions during the \"finality era,\" which takes its name from a feature of the Immigration Act of 1891 making certain immigration decisions \"final.\" In Nishimura Ekiu v. United States, 142 U. S. 651, the Court interpreted the Act to preclude judicial review only of questions of fact. Federal courts otherwise retained authority under the Habeas Corpus Act of 1867 to determine whether an alien was detained in violation of federal law. Thus, when aliens sought habeas relief during the finality era, the Court exercised habeas jurisdiction that was conferred by the habeas statute, not because it was required by the Suspension Clause—which the Court did not mention. Pp. 23–32. (3) The Court’s more recent decisions in Boumediene v. Bush, 553 U. S. 723, and St. Cyr, 533 U. S. 289, also do not support respondent’s argument. Boumediene was not about immigration at all, and St. Cyr reaffirmed that the common-law habeas writ provided a vehicle to challenge detention and could be invoked by aliens already in the country who were held in custody pending deportation. It did not approve respondent’s very different attempted use of the writ. Pp. 32–33. 2. As applied here, §1252(e)(2) does not violate the Due Process Clause. More than a century of precedent establishes that, for aliens seeking initial entry, \"the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.\" Nishimura Ekiu, 142 U. S., at 660. Respondent argues that this rule does not apply to him because he succeeded in making it 25 yards into U. S. territory. But the rule would be meaningless if it became inoperative as soon as an arriving alien set foot on U. S. soil. An alien who is detained shortly after unlawful entry cannot be said to have \"effected an entry.\" Zadvydas v. Davis, 533 U. S. 678, 693. An alien in respondent’s position, therefore, has only those rights regarding admission that Congress has provided by statute. In respondent’s case, Congress provided the right to a \"determin[ation]\" whether he had \"a significant possibility\" of \"establish[ing] eligibility for asylum,\" and he was given that right. §§1225(b)(1)(B)(ii), (v). Pp. 34–36. 917 F. 3d 1097, reversed and remanded.", "opinion": "Every year, hundreds of thousands of aliens are apprehended at or near the border attempting to enter this country illegally. Many ask for asylum, claiming that they would be persecuted if returned to their home countries. Some of these claims are valid, and by granting asylum, the United States lives up to its ideals and its treaty obligations. Most asylum claims, however, ultimately fail, and some are fraudulent. In 1996, when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009–546, it crafted a system for weeding out patently meritless claims and expeditiously removing the aliens making such claims from the country. It was Congress’s judgment that detaining all asylum seekers until the full-blown removal process is completed would place an unacceptable burden on our immigration system and that releasing them would present an undue risk that they would fail to appear for removal proceedings. This case concerns the constitutionality of the system Congress devised. Among other things, IIRIRA placed restrictions on the ability of asylum seekers to obtain review under the federal habeas statute, but the United States Court of Appeals for the Ninth Circuit held that these restrictions are unconstitutional. According to the Ninth Circuit, they unconstitutionally suspend the writ of habeas corpus and violate asylum seekers’ right to due process. We now review that decision and reverse. Respondent’s Suspension Clause argument fails because it would extend the writ of habeas corpus far beyond its scope \"when the Constitution was drafted and ratified.\" Boumediene v. Bush, 553 U. S. 723, 746 (2008). Indeed, respondent’s use of the writ would have been unrecognizable at that time. Habeas has traditionally been a means to secure release from unlawful detention, but respondent invokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country. Respondent’s due process argument fares no better. While aliens who have established connections in this country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. See Nishimura Ekiu v. United States, 142 U. S. 651, 660 (1892). Respondent attempted to enter the country illegally and was apprehended just 25 yards from the border. He therefore has no entitlement to procedural rights other than those afforded by statute. In short, under our precedents, neither the Suspension Clause nor the Due Process Clause of the Fifth Amendment requires any further review of respondent’s claims, and IIRIRA’s limitations on habeas review are constitutional as applied. I A We begin by briefly outlining the provisions of immigration law that are pertinent to this case. Under those provisions, several classes of aliens are \"inadmissible\" and therefore \"removable.\" 8 U. S. C. §§1182, 1229a(e)(2)(A). These include aliens who lack a valid entry document \"at the time of application for admission.\" §1182(a)(7)(A)(i)(I). An alien who arrives at a \"port of entry,\" i.e., a place where an alien may lawfully enter, must apply for admission. An alien like respondent who is caught trying to enter at some other spot is treated the same way. §§1225(a)(1), (3). If an alien is inadmissible, the alien may be removed. The usual removal process involves an evidentiary hearing before an immigration judge, and at that hearing an alien may attempt to show that he or she should not be removed. Among other things, an alien may apply for asylum on the ground that he or she would be persecuted if returned to his or her home country. §1229a(b)(4); 8 CFR §1240.11(c) (2020). If that claim is rejected and the alien is ordered removed, the alien can appeal the removal order to the Board of Immigration Appeals and, if that appeal is unsuccessful, the alien is generally entitled to review in a federal court of appeals. 8 U. S. C. §§1229a(c)(5), 1252(a). As of the first quarter of this fiscal year, there were 1,066,563 pending removal proceedings. See Executive Office for Immigration Review (EOIR), Adjudication Statistics: Pending Cases (Jan. 2020). The average civil appeal takes approximately one year.1 During the time when removal is being litigated, the alien will either be detained, at considerable expense, or allowed to reside in this country, with the attendant risk that he or she may not later be found. §1226(a). Congress addressed these problems by providing more expedited procedures for certain \"applicants for admission.\" For these purposes, \"[a]n alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival . . . )\" is deemed \"an applicant for admission.\" §1225(a)(1).2 An applicant is subject to expedited removal if, as relevant here, the applicant (1) is inadmissible because he or she lacks a valid entry document; (2) has not \"been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility\"; and (3) is among those whom the Secretary of Homeland Security has designated for expedited removal. §§1225(b)(1)(A)(i), (iii)(I)–(II).3 Once \"an immigration officer determines\" that a designated applicant \"is inadmissible,\" \"the officer [must] order the alien removed from the United States without further hearing or review.\" §1225(b)(1)(A)(i). Applicants can avoid expedited removal by claiming asylum. If an applicant \"indicates either an intention to apply for asylum\" or \"a fear of persecution,\" the immigration officer \"shall refer the alien for an interview by an asylum officer.\" §§1225(b)(1)(A)(i)–(ii). The point of this screening interview is to determine whether the applicant has a \"credible fear of persecution.\" §1225(b)(1)(B)(v). The applicant need not show that he or she is in fact eligible for asylum— a \"credible fear\" equates to only a \"significant possibility\" that the alien would be eligible. Ibid. Thus, while eligibility ultimately requires a \"well-founded fear of persecution on account of,\" among other things, \"race\" or \"political opinion,\" §§1101(a)(42)(A), 1158(b)(1)(A), all that an alien must show to avoid expedited removal is a \"credible fear.\"4 If the asylum officer finds an applicant’s asserted fear to be credible,5 the applicant will receive \"full consideration\" of his asylum claim in a standard removal hearing. 8 CFR §208.30(f ); see 8 U. S. C. §1225(b)(1)(B)(ii). If the asylum officer finds that the applicant does not have a credible fear, a supervisor will review the asylum officer’s determination. 8 CFR §208.30(e)(8). If the supervisor agrees with it, the applicant may appeal to an immigration judge, who can take further evidence and \"shall make a de novo determination.\" §§1003.42(c), (d)(1); see 8 U. S. C. §1225(b)(1)(B)(iii)(III). An alien subject to expedited removal thus has an opportunity at three levels to obtain an asylum hearing, and the applicant will obtain one unless the asylum officer, a supervisor, and an immigration judge all find that the applicant has not asserted a credible fear. Over the last five years, nearly 77% of screenings have resulted in a finding of credible fear.6 And nearly half the remainder (11% of the total number of screenings) were closed for administrative reasons, including the alien’s withdrawal of the claim.7 As a practical matter, then, the great majority of asylum seekers who fall within the category subject to expedited removal do not receive expedited removal and are instead afforded the same procedural rights as other aliens. Whether an applicant who raises an asylum claim receives full or only expedited review, the applicant is not entitled to immediate release. Applicants \"shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.\" §1225(b)(1)(B)(iii)(IV). Applicants who are found to have a credible fear may also be detained pending further consideration of their asylum applications. §1225(b)(1)(B)(ii); see Jennings v. Rodriguez, 583 U. S. ___, ___, ___ (2018) (slip op., at 3, 13).8 B The IIRIRA provision at issue in this case, §1252(e)(2), limits the review that an alien in expedited removal may obtain via a petition for a writ of habeas corpus. That provision allows habeas review of three matters: first, \"whether the petitioner is an alien\"; second, \"whether the petitioner was ordered removed\"; and third, whether the petitioner has already been granted entry as a lawful permanent resident, refugee, or asylee. §§1252(e)(2)(A)–(C). If the petitioner has such a status, or if a removal order has not \"in fact\" been \"issued,\" §1252(e)(5), the court may order a removal hearing, §1252(e)(4)(B). A major objective of IIRIRA was to \"protec[t] the Executive’s discretion\" from undue interference by the courts; indeed, \"that can fairly be said to be the theme of the legislation.\" Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 486 (1999) (AAADC). In accordance with that aim, §1252(e)(5) provides that \"[t]here shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.\" And \"[n]otwithstanding\" any other \"habeas corpus provision\"—including 28 U. S. C. §2241— \"no court shall have jurisdiction to review\" any other \"individual determination\" or \"claim arising from or relating to the implementation or operation of an order of [expedited] removal.\" §1252(a)(2)(A)(i). In particular, courts may not review \"the determination\" that an alien lacks a credible fear of persecution. §1252(a)(2)(A)(iii); see also §§1252(a)(2)(A)(ii), (iv) (other specific limitations). Even without the added step of judicial review, the credible-fear process and abuses of it can increase the burdens currently \"overwhelming our immigration system.\" 84 Fed. Reg. 33841 (2019).9 The past decade has seen a 1,883% increase in credible-fear claims, and in 2018 alone, there were 99,035 claims. See id., at 33838 (data for fiscal years 2008 to 2018). The majority have proved to be meritless. Many applicants found to have a credible fear—about 50% over the same 10-year period—did not pursue asylum. See EOIR, Adjudication Statistics: Rates of Asylum Filings in Cases Originating With a Credible Fear Claim (Nov. 2018); see also 84 Fed. Reg. 33841 (noting that many instead abscond). In 2019, a grant of asylum followed a finding of credible fear just 15% of the time. See EOIR, Asylum Decision Rates in Cases Originating With a Credible Fear Claim (Oct. 2019). Fraudulent asylum claims can also be difficult to detect,10 especially in a screening process that is designed to be expedited and that is currently handling almost 100,000 claims per year. The question presented thus has significant consequences for the immigration system. If courts must review credible-fear claims that in the eyes of immigration officials and an immigration judge do not meet the low bar for such claims, expedited removal would augment the burdens on that system. Once a fear is asserted, the process would no longer be expedited. C Respondent Vijayakumar Thuraissigiam, a Sri Lankan national, crossed the southern border without inspection or an entry document at around 11 p.m. one night in January 2017. App. 38. A Border Patrol agent stopped him within 25 yards of the border, and the Department detained him for expedited removal. Id., at 37–39, 106; see §§1182(a)(7)(A)(i)(I), 1225(b)(1)(A)(ii), and (b)(1)(B)(iii)(IV). He claimed a fear of returning to Sri Lanka because a group of men had once abducted and severely beaten him, but he said that he did not know who the men were, why they had assaulted him, or whether Sri Lankan authorities would protect him in the future. Id., at 80. He also affirmed that he did not fear persecution based on his race, political opinions, or other protected characteristics. Id., at 76–77; see §1101(a)(42)(A). The asylum officer credited respondent’s account of the assault but determined that he lacked a \"credible\" fear of persecution, as defined by §1225(b)(1)(B)(v), because he had offered no evidence that could have made him eligible for asylum (or other removal relief ). Id., at 83, 87, 89; see §1158(b)(1)(A). The supervising officer agreed and signed the removal order. Id., at 54, 107. After hearing further testimony from respondent, an Immigration Judge affirmed on de novo review and returned the case to the Department for removal. Id., at 97. Respondent then filed a federal habeas petition. Asserting for the first time a fear of persecution based on his Tamil ethnicity and political views, id., at 12–13, he argued that he \"should have passed the credible fear stage,\" id., at 30. But, he alleged, the immigration officials deprived him of \"a meaningful opportunity to establish his claims\" and violated credible-fear procedures by failing to probe past his denial of the facts necessary for asylum. Id., at 27, 32. Allegedly they also failed to apply the \"correct standard\" to his claims—the \"significant possibility\" standard—despite its repeated appearance in the records of their decisions. Id., at 30; see id., at 53, 84–89, 97. Respondent requested \"a writ of habeas corpus, an injunction, or a writ of mandamus directing [the Department] to provide [him] a new opportunity to apply for asylum and other applicable forms of relief.\" Id., at 33. His petition made no mention of release from custody. The District Court dismissed the petition, holding that §§1252(a)(2) and (e)(2) and clear Ninth Circuit case law foreclosed review of the negative credible-fear determination that resulted in respondent’s expedited removal order. 287 F. Supp. 3d 1077, 1081 (SD Cal. 2018). The court also rejected respondent’s argument \"that the jurisdictional limitations of §1252(e) violate the Suspension Clause,\" again relying on Circuit precedent. Id., at 1082–1083. The Ninth Circuit reversed. It found that our Suspension Clause precedent demands \"reference to the writ as it stood in 1789.\" 917 F. 3d 1097, 1111 (2019). But without citing any pre-1789 case about the scope of the writ, the court held that §1252(e)(2) violates the Suspension Clause. See id., at 1113–1119. The court added that respondent \"has procedural due process rights,\" specifically the right \"‘to expedited removal proceedings that conformed to the dictates of due process.’\" Id., at 1111, n. 15 (quoting United States v. Raya-Vaca, 771 F. 3d 1195, 1203 (CA9 2014)). Although the decision applied only to respondent, petitioners across the Circuit have used it to obtain review outside the scope of §1252(e)(2), and petitioners elsewhere have attempted to follow suit.11 The Ninth Circuit’s decision invalidated the application of an important provision of federal law and conflicted with a decision from another Circuit, see Castro v. United States Dept. of Homeland Security, 835 F. 3d 422 (CA3 2016). We granted certiorari, 589 U. S. ___ (2019). II A The Suspension Clause provides that \"[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.\" U. S. Const., Art. I, §9, cl. 2. In INS v. St. Cyr, 533 U. S. 289 (2001), we wrote that the Clause, at a minimum, \"protects the writ as it existed in 1789,\" when the Constitution was adopted. Id., at 301 (internal quotation marks omitted). And in this case, respondent agrees that \"there is no reason\" to consider whether the Clause extends any further. Brief for Respondent 26, n. 12. We therefore proceed on that basis. B This principle dooms respondent’s Suspension Clause argument, because neither respondent nor his amici have shown that the writ of habeas corpus was understood at the time of the adoption of the Constitution to permit a petitioner to claim the right to enter or remain in a country or to obtain administrative review potentially leading to that result. The writ simply provided a means of contesting the lawfulness of restraint and securing release. In 1768, Blackstone’s Commentaries—usually a \"satisfactory exposition of the common law of England,\" Schick v. United States, 195 U. S. 65, 69 (1904)—made this clear. Blackstone wrote that habeas was a means to \"remov[e] the injury of unjust and illegal confinement.\" 3 W. Blackstone, Commentaries on the Laws of England 137 (emphasis deleted). Justice Story described the \"common law\" writ the same way. See 3 Commentaries on the Constitution of the United States §1333, p. 206 (1833). Habeas, he explained, \"is the appropriate remedy to ascertain . . . whether any person is rightfully in confinement or not.\" Ibid. We have often made the same point. See, e.g., Preiser v. Rodriguez, 411 U. S. 475, 484 (1973) (\"It is clear . . . from the common-law history of the writ . . . that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody\"); Wilkinson v. Dotson, 544 U. S. 74, 79 (2005) (similar); Munaf v. Geren, 553 U. S. 674, 693 (2008) (similar). In this case, however, respondent did not ask to be released.13 Instead, he sought entirely different relief: vacatur of his \"removal order\" and \"an order directing [the Department] to provide him with a new . . . opportunity to apply for asylum and other relief from removal.\" App. 14 (habeas petition). See also id., at 31 (\"a fair procedure to apply for asylum, withholding of removal, and CAT relief\"); id., at 14 (\"a new, meaningful opportunity to apply for asylum and other relief from removal\"). Such relief might fit an injunction or writ of mandamus—which tellingly, his petition also requested, id., at 33—but that relief falls outside the scope of the common-law habeas writ. Although the historic role of habeas is to secure release from custody, the Ninth Circuit did not suggest that release, at least in the traditional sense of the term,14 was required. Instead, what it found to be necessary was a \"meaningful opportunity\" for review of the procedures used in determining that respondent did not have a credible fear of persecution. 917 F. 3d, at 1117. Thus, even according to the Ninth Circuit, respondent’s petition did not call for traditional habeas relief. Not only did respondent fail to seek release, he does not dispute that confinement during the pendency of expedited asylum review, and even during the additional proceedings he seeks, is lawful. Nor could he. It is not disputed that he was apprehended in the very act of attempting to enter this country; that he is inadmissible because he lacks an entry document, see §§1182(a)(7)(A), 1225(b)(1)(A)(i); and that, under these circumstances, his case qualifies for the expedited review process, including \"[m]andatory detention\" during his credible-fear review, §§1225(b)(1)(B)(ii), (iii)(IV). Moreover, simply releasing him would not provide the right to stay in the country that his petition ultimately seeks. Without a change in status, he would remain subject to arrest, detention, and removal. §§1226(a), 1229a(e)(2). While respondent does not claim an entitlement to release, the Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka. That would be the equivalent of the habeas relief Justice Story ordered in a case while riding circuit. He issued a writ requiring the release of a foreign sailor who jumped ship in Boston, but he provided for the sailor to be released into the custody of the master of his ship. Ex parte D’Olivera, 7 F. Cas. 853, 854 (No. 3,967) (CC Mass. 1813). Respondent does not want anything like that. His claim is more reminiscent of the one we rejected in Munaf. In that case, American citizens held in U. S. custody in Iraq filed habeas petitions in an effort to block their transfer to Iraqi authorities for criminal prosecution. See 553 U. S., at 692. Rejecting this use of habeas, we noted that \"[h]abeas is at its core a remedy for unlawful executive detention\" and that what these individuals wanted was not \"simple release\" but an order requiring them to be brought to this country. Id., at 693, 697. Claims so far outside the \"core\" of habeas may not be pursued through habeas. See, e.g., Skinner v. Switzer, 562 U. S. 521, 535, n. 13 (2011). Like the habeas petitioners in Munaf, respondent does not want \"simple release\" but, ultimately, the opportunity to remain lawfully in the United States. That he seeks to stay in this country, while the habeas petitioners in Munaf asked to be brought here from Iraq, see post, at 19–20 (opinion of SOTOMAYOR, J.), is immaterial. In this case as in Munaf, the relief requested falls outside the scope of the writ as it was understood when the Constitution was adopted. See Castro, 835 F. 3d, at 450–451 (Hardiman, J., concurring dubitante) (\"Petitioners here seek to alter their status in the United States in the hope of avoiding release to their homelands. That prayer for relief . . . dooms the merits of their Suspension Clause argument\" (emphasis deleted)). III Disputing this conclusion, respondent argues that the Suspension Clause guarantees a broader habeas right. To substantiate this claim, he points to three bodies of case law: British and American cases decided prior to or around the time of the adoption of the Constitution, decisions of this Court during the so-called \"finality era\" (running from the late 19th century to the mid-20th century), and two of our more recent cases. None of these sources support his argument. A Respondent and amici supporting his position have done considerable research into the use of habeas before and around the time of the adoption of the Constitution,15 but they have not unearthed evidence that habeas was then used to obtain anything like what is sought here, namely, authorization for an alien to remain in a country other than his own or to obtain administrative or judicial review leading to that result. All that their research (and the dissent’s) shows is that habeas was used to seek release from detention in a variety of circumstances. In fact, respondent and his amici do not argue that their cases show anything more. See Brief for Respondent 27 (arguing that habeas was \"available\" at the founding \"to test all forms of physical restraint\"); Brief for Scholars of the Law of Habeas Corpus as Amici Curiae 11 (the \"historical record . . . demonstrates that the touchstone for access to the writ\" was \"whether the petitioner challenges control of his person\"). Because respondent seeks to use habeas to obtain something far different from simple release, his cause is not aided by the many release cases that he and his amici have found. Thus, for present purposes, it is immaterial that habeas was used to seek release from confinement that was imposed for, among other things, contempt of court (see Bushell’s Case, Vaugh. 135, 124 Eng. Rep. 1006 (C. P. 1670)), debt (see Hollingshead’s Case, 1 Salk. 351, 91 Eng. Rep. 307 (K. B. 1702); Rex v. Nathan, 2 Str. 880, 93 Eng. Rep. 914 (K. B. 1724)), medical malpractice (see Dr. Groenvelt’s Case, 1 Raym. Ld. 213, 91 Eng. Rep. 1038 (K. B. 1702)), failing to pay an assessment for sewers (see Hetley v. Boyer, Cro. Jac. 336, 79 Eng. Rep. 287 (K. B. 1613)), failure to lend the King money (see Darnel’s Case, 3 How. St. Tr. 1 (K. B. 1627)), carrying an authorized \"dagg,\" i.e., handgun (see Gardener’s Case, Cro. Eliz. 821, 78 Eng. Rep. 1048 (K. B. 1600)), \"impressment\" into military service or involuntary servitude (see St. Cyr, 533 U. S., at 302), or refusing to pay a colonial tax (see Oldham & Wishnie 496). Nor does it matter that common-law courts sometimes ordered or considered ordering release in circumstances that would be beyond the reach of any habeas statute ever enacted by Congress, such as release from private custody. See, e.g., Rex v. Delaval, 3 Burr. 1434, 1435–1437, 97 Eng. Rep. 913, 914 (K. B. 1763) (release of young woman from \"indentures of apprenticeship\"); Rex v. Clarkson, 1 Str. 444, 93 Eng. Rep. 625 (K. B. 1722) (release from boarding school); Lister’s Case, 8 Mod. 22, 88 Eng. Rep. 17 (K. B. 1721) (release of wife from estranged husband’s restraint). What matters is that all these cases are about release from restraint. Accord, Preiser, 411 U. S., at 484–485, and nn. 3–5.16 Respondent and his amici note that habeas petitioners were sometimes released on the condition that they conform to certain requirements. See Brief for Respondent 30; Legal Historians Brief 18. For example, they cite a case in which a man was released on condition that he treat his wife well and support her, and another in which a man was released on condition that he issue an apology. Ibid. But what respondent sought in this case is nothing like that. Respondent does not seek an order releasing him on the condition that he do or refrain from doing something. What he wants—further review of his asylum claim—is not a condition with which he must comply. Equally irrelevant is the practice, discussed in the dissent, of allowing the executive to justify or cure a defect in detention before requiring release. See post, at 16–18. Respondent does not seek this sort of conditional release either, because the legality of his detention is not in question. Respondent contends that two cases show that habeas could be used to secure the right of a non-citizen to remain in a foreign country, but neither proves his point. His first case, involving a Scot named Murray, is one for which no official report is available for us to review.17 We could hardly base our decision here on such a decision.18 His second case, Somerset v. Stewart, Lofft. 1, 98 Eng. Rep. 499 (K. B. 1772), is celebrated but does not aid respondent. James Somerset was a slave who was \"detain[ed]\" on a ship bound for Jamaica, and Lord Mansfield famously ordered his release on the ground that his detention as a slave was unlawful in England. Id., at 19, 98 Eng. Rep., at 510. This relief, release from custody, fell within the historic core of habeas, and Lord Mansfield did not order anything else. It may well be that a collateral consequence of Somerset’s release was that he was allowed to remain in England, but if that is so, it was due not to the writ issued by Lord Mansfield, but to English law regarding entitlement to reside in the country. At the time, England had nothing like modern immigration restrictions. As late as 1816, the word \"deportation\" apparently \"was not to be found in any English dictionary.\" The Use of the Crown’s Power of Deportation Under the Aliens Act, 1793–1826, in J. Dinwiddy, Radicalism and Reform in Britain, 1780–1850, p. 150, n. 4 (1992); see also, e.g., Craies, The Right of Aliens To Enter British Territory, 6 L. Q. Rev. 27, 35 (1890) (\"England was a complete asylum to the foreigner who did not offend against its laws\"); Haycraft, Alien Legislation and the Prerogative of the Crown, 13 L. Q. Rev. 165, 180 (1897) (\"There do not appear to have been any transactions in Parliament or in the [Crown’s] Privy Council directly affecting [deportation] from the time of Elizabeth [I] to that of George III\").19 For a similar reason, respondent cannot find support in early 19th-century American cases in which deserting foreign sailors used habeas to obtain their release from the custody of American officials. In none of the cases involving deserters that have been called to our attention did the court order anything more than simple release from custody. As noted, Justice Story ordered a sailor’s release into the custody of his ship’s master. See Ex parte D’Olivera, 7 F. Cas., at 854. Other decisions, while ordering the release of detained foreign deserters because no statute authorized detention, chafed at having to order even release. See Case of the Deserters from the British Frigate L’Africaine, 3 Am. L. J. & Misc. Repertory 132, 135–136 (Md. 1810) (reporting judge’s statement \"that he never would interfere to prevent\" the British consul himself from detaining British deserters); Case of Hippolyte Dumas, 2 Am. L. J. & Misc. Repertory 86, 87 (Pa. 1809) (noting \"inconvenience\" that U. S. law did not discourage desertion of foreign sailors); Commonwealth v. Holloway, 1 Serg. & Rawle 392, 396 (Pa. 1815) (opinion of Tilghman, C. J.) (same); id., at 397 (opinion of Yeates, J.) (same). These cases thus do not contemplate the quite different relief that respondent asks us to sanction here. In these cases, as in Somerset, it may be that the released petitioners were able to remain in the United States as a collateral consequence of release, but if so, that was due not to the writs ordering their release, but to U. S. immigration law or the lack thereof. These decisions came at a time when an \"open door to the immigrant was the . . . federal policy.\" Harisiades v. Shaughnessy, 342 U. S. 580, 588, n. 15 (1952); see also St. Cyr, 533 U. S., at 305 (first immigration regulation enacted in 1875). So release may have had the side effect of enabling these individuals to remain in this country, but that is beside the point. The relief that a habeas court may order and the collateral consequences of that relief are two entirely different things. Ordering an individual’s release from custody may have the side effect of enabling that person to pursue all sorts of opportunities that the law allows. For example, release may enable a qualified surgeon to operate on a patient; a licensed architect may have the opportunity to design a bridge; and a qualified pilot may be able to fly a passenger jet. But a writ of habeas could not be used to compel an applicant to be afforded those opportunities or as a means to obtain a license as a surgeon, architect, or pilot. Similarly, while the release of an alien may give the alien the opportunity to remain in the country if the immigration laws permit, we have no evidence that the writ as it was known in 1789 could be used to require that aliens be permitted to remain in a country other than their own, or as a means to seek that permission. Respondent’s final examples involve international extradition, but these cases are no more pertinent than those already discussed. For one thing, they post-date the founding era. England was not a party to any extradition treaty in 1789, and this country’s first extradition treaty was the Jay Treaty of 1794. See 1 J. Moore, Extradition and Interstate Rendition §§7, 78, pp. 10, 89 (1891). In any event, extradition cases, similar to the deserter cases, illustrate nothing more than the use of habeas to secure release from custody when not in compliance with the extradition statute and relevant treaties. As noted by a scholar on whose work respondent relies, these cases \"examine[d] the lawfulness of magistrates’ decisions permitting the executive to detain aliens.\" Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 1003 (1998). In these cases, as in all the others noted above, habeas was used \"simply\" to seek release from allegedly unlawful detention. Benson v. McMahon, 127 U. S. 457, 463 (1888). See also, e.g., In re Stupp, 23 F. Cas. 296, 303 (No. 13,563) (CC SDNY 1875).20 Despite pages of rhetoric, the dissent is unable to cite a single pre-1789 habeas case in which a court ordered relief that was anything like what respondent seeks here. The dissent instead contends that \"the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent,\" post, at 11, and then discusses cases that are not even close to this one. The dissent reveals the true nature of its argument by suggesting that there are \"inherent difficulties [in] a strict originalist approach in the habeas context because of, among other things, the dearth of reasoned habeas decisions at the founding.\" Ibid. But respondent does not ask us to hold that the Suspension Clause guarantees the writ as it might have evolved since the adoption of the Constitution. On the contrary, as noted at the outset of this discussion, he rests his argument on \"the writ as it existed in 1789.\" Brief for Respondent 26, n. 12. What the dissent merely implies, one concurring opinion states expressly, arguing that the scope of the writ guaranteed by the Suspension Clause \"may change ‘depending upon the circumstances’\" and thus may allow certain aliens to seek relief other than release. Post, at 3 (BREYER, J., concurring in judgment) (quoting Boumediene, 553 U. S., at 779). But that is not respondent’s argument, and as a general rule \"we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.\" United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020) (slip op., at 3) (internal quotation marks omitted). In any event, the concurrence’s snippets of quotations from Boumediene are taken entirely out of context. They relate to the question whether the statutory review procedures for Guantanamo detainees seeking release from custody provided an adequate substitute for a habeas petition seeking release. See infra, at 32–33. They do not suggest that any habeas writ guaranteed by the Suspension Clause permits a petitioner to obtain relief that goes far beyond the \"core\" of habeas as \"a remedy for unlawful executive detention.\" Munaf, 553 U. S., at 693.21 B We now proceed to consider the second body of case law on which respondent relies, decisions of this Court during the \"finality era,\" which takes its name from a feature of the Immigration Act of 1891 making certain immigration decisions \"final.\" Although respondent claims that his argument is supported by \"the writ as it existed in 1789,\" Brief for Respondent 26, n. 12, his argument focuses mainly on this body of case law, which began a century later. These cases, he claims, held that \"the Suspension Clause mandates a minimum level of judicial review to ensure that the Executive complies with the law in effectuating removal.\" Id., at 11–12. The Ninth Circuit also relied heavily on these cases and interpreted them to \"suggest that the Suspension Clause requires review of legal and mixed questions of law and fact related to removal orders.\" 917 F. 3d, at 1117. This interpretation of the \"finality era\" cases is badly mistaken. Those decisions were based not on the Suspension Clause but on the habeas statute and the immigration laws then in force. The habeas statute in effect during this time was broad in scope. It authorized the federal courts to review whether a person was being held in custody in violation of any federal law, including immigration laws. Thus, when aliens claimed that they were detained in violation of immigration statutes, the federal courts considered whether immigration authorities had complied with those laws. This, of course, required that the immigration laws be interpreted, and at the start of the finality era, this Court interpreted the 1891 Act’s finality provision to block review of only questions of fact. Accordingly, when writs of habeas corpus were sought by aliens who were detained on the ground that they were not entitled to enter this country, the Court considered whether, given the facts found by the immigration authorities, the detention was consistent with applicable federal law. But the Court exercised that review because it was authorized to do so by statute. The decisions did not hold that this review was required by the Suspension Clause. In this country, the habeas authority of federal courts has been addressed by statute from the very beginning. The Judiciary Act of 1789, §14, 1 Stat. 82, gave the federal courts the power to issue writs of habeas corpus under specified circumstances, but after the Civil War, Congress enacted a much broader statute. That law, the Habeas Corpus Act of 1867, provided that \"the several courts of the United States . . . shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.\" Judiciary Act of Feb. 5, 1867, §1, 14 Stat. 385. The Act was \"of the most comprehensive character,\" bringing \"within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary\" to federal law. Ex parte McCardle, 6 Wall. 318, 325–326 (1868). This jurisdiction was \"impossible to widen.\" Id., at 326; see Fay v. Noia, 372 U. S. 391, 415 (1963) (noting the Act’s \"expansive language\" and \"imperative tone\"). The 1867 statute, unlike the current federal habeas statute, was not subject to restrictions on the issuance of writs in immigration matters, and in United States v. Jung Ah Lung, 124 U. S. 621 (1888), the Court held that an alien in immigration custody could seek a writ under that statute. Id., at 626. This provided the statutory basis for the writs sought in the finality era cases. The Immigration Act of 1891, enacted during one of the country’s great waves of immigration, required the exclusion of certain categories of aliens and established procedures for determining whether aliens fell within one of those categories. The Act required the exclusion of \"idiots, insane persons, paupers or persons likely to become a public charge,\" persons with infectious diseases, persons with convictions for certain crimes, some individuals whose passage had been paid for by a third party, and certain laborers. Act of Mar. 3, 1891, ch. 551, §1, 26 Stat. 1084. Inspection officers were authorized to board arriving vessels and inspect any aliens on board. §8, id., at 1085. And, in the provision of central importance here, the Act provided that \"[a]ll decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury.\" Ibid. Later immigration Acts, which remained in effect until 1952,22 contained similar provisions. See Act of 1894, 28 Stat. 390; Immigration Act of 1907, §25, 34 Stat. 907; Immigration Act of 1917, §17, 39 Stat. 887. The first of the finality era cases, Nishimura Ekiu v. United States, 142 U. S. 651 (1892), required the Court to address the effect of the 1891 Act’s finality provision in a habeas case. Nishimura Ekiu is the cornerstone of respondent’s argument regarding the finality era cases, so the opinion in that case demands close attention. The case involved an alien who was detained upon arrival based on the immigration inspector’s finding that she was liable to become a public charge. Seeking to be released, the alien applied to the Circuit Court for a writ of habeas corpus and argued that the 1891 Act, if construed to give immigration authorities the \"exclusive authority to determine\" her right to enter, would violate her constitutional right to the writ of habeas corpus and her right to due process. Id., at 656 (statement of the case). The Circuit Court refused to issue the writ, holding that the determination of the inspector of immigration was not subject to review, and the alien then appealed. This Court upheld the denial of the writ. The Court interpreted the 1891 Act to preclude judicial review only with respect to questions of fact. Id., at 660. And after interpreting the 1891 Act in this way, the Court found that \"the act of 1891 is constitutional.\" Id., at 664. The Court’s narrow interpretation of the 1891 Act’s finality provision meant that the federal courts otherwise retained the full authority granted by the Habeas Corpus Act of 1867 to determine whether an alien was detained in violation of federal law. Turning to that question, the Court held that the only procedural rights of an alien seeking to enter the country are those conferred by statute. \"As to such persons,\" the Court explained, \"the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.\" Id., at 660. The Court therefore considered whether the procedures set out in the 1891 Act had been followed, and finding no violation, affirmed the denial of the writ. Id., at 661– 664. What is critical for present purposes is that the Court did not hold that the Suspension Clause imposed any limitations on the authority of Congress to restrict the issuance of writs of habeas corpus in immigration matters. Respondent interprets Nishimura Ekiu differently. See Brief for Respondent 13–15. As he reads the decision, the Court interpreted the 1891 Act to preclude review of all questions related to an alien’s entitlement to enter the country. Any other interpretation, he contends, would fly in the face of the statutory terms. But, he maintains, the Court held that this limitation violated the Suspension Clause except with respect to questions of fact, and it was for this reason that the Court considered whether the procedures specified by the 1891 Act were followed. In other words, he reads Nishimura Ekiu as holding that the 1891 Act’s finality provision was unconstitutional in most of its applications (i.e., to all questions other than questions of fact). This interpretation is wrong. The opinion in Nishimura Ekiu states unequivocally that \"the act of 1891 is constitutional,\" id., at 664, not that it is constitutional only in part. And if there is any ambiguity in the opinion regarding the Court’s interpretation of the finality provision, the later decision in Gegiow v. Uhl, 239 U. S. 3 (1915), left no doubt. What Nishimura Ekiu meant, Gegiow explained, was that the immigration authorities’ factual findings were conclusive (as Gegiow put it, \"[t]he conclusiveness of the decisions of immigration officers . . . is conclusiveness upon matters of fact\") and therefore, the Court was \"not forbidden by the statute to consider\" in a habeas proceeding \"whether the reasons\" for removing an alien \"agree with the requirements of the act.\" 239 U. S., at 9. In light of this interpretation, the Nishimura Ekiu Court had no occasion to decide whether the Suspension Clause would have tolerated a broader limitation, and there is not so much as a hint in the opinion that the Court considered this question. Indeed, the opinion never even mentions the Suspension Clause, and it is utterly implausible that the Court would hold sub silentio that Congress had violated that provision. Holding that an Act of Congress unconstitutionally suspends the writ of habeas corpus is momentous. See Boumediene, 553 U. S., at 773 (noting \"the care Congress has taken throughout our Nation’s history\" to avoid suspension). The Justices on the Court at the beginning of the finality era had seen historic occasions when the writ was suspended—during the Civil War by President Lincoln and then by Congress, and later during Reconstruction by President Grant. See Hamdi v. Rumsfeld, 542 U. S. 507, 563 (2004) (Scalia, J., dissenting) (discussing these events). The suspension of habeas during this era played a prominent role in our constitutional history. See Ex parte Merryman, 17 F. Cas. 144, 151–152 (No. 9,487) (CC Md. 1861) (Taney, C. J.); Ex parte Milligan, 4 Wall. 2, 116, 131 (1866). (Two of the Justices at the beginning of the finality era were on the Court when Ex parte Milligan was decided.) The Justices knew a suspension of the writ when they saw one, and it is impossible to believe that the Nishimura Ekiu Court identified another occasion when Congress had suspended the writ and based its decision on the Suspension Clause without even mentioning that provision. The dissent’s interpretation of Nishimura Ekiu is different from respondent’s. According to the dissent, Nishimura Ekiu interpreted the 1891 Act as it did based on the doctrine of constitutional avoidance. See post, at 22. This reading has no support in the Court’s opinion, which never mentions the Suspension Clause or the avoidance doctrine and never explains why the Clause would allow Congress to preclude review of factual findings but nothing more. But even if there were some basis for this interpretation, it would not benefit respondent, and that is undoubtedly why he has not made the argument. IIRIRA unequivocally bars habeas review of respondent’s claims, see §1252(e)(2), and he does not argue that it can be read any other way. The avoidance doctrine \"has no application in the absence of ambiguity.\" Warger v. Shauers, 574 U. S. 40, 50 (2014) (internal quotation marks and ellipsis omitted). Thus, if Nishimura Ekiu’s interpretation were based on constitutional avoidance, it would still not answer the interpretive question here. When we look to later finality era cases, any suggestion of a Suspension Clause foundation becomes even less plausible. None of those decisions mention the Suspension Clause or even hint that they are based on that provision, and these omissions are telling. On notable occasions during that time, the writ was suspended—in the Philippines in 190623 and Hawaii in 1941.24 During World War II, the Court held that \"enemy aliens\" could utilize habeas \"unless there was suspension of the writ.\" In re Yamashita, 327 U. S. 1, 9 (1946). And the Court invoked the Suspension Clause in holding that the Executive lacked authority to intern a Japanese-American citizen. See Ex parte Endo, 323 U. S. 283, 297–299 (1944). If the Justices during that time had thought that the Suspension Clause provided the authority they were exercising in the many cases involving habeas petitions by aliens detained prior to entry, it is hard to believe that this important fact would have escaped mention. Respondent suggests that Nishimura Ekiu cannot have interpreted the 1891 Act’s finality provision to apply only to factual questions because the statutory text categorically bars all review. The important question here, however, is what the Court did in Nishimura Ekiu, not whether its interpretation was correct, and in any event, there was a reasonable basis for the Court’s interpretation. The determinations that the immigration officials were required to make under the 1891 Act were overwhelmingly factual in nature. The determination in Nishimura’s case— that she was likely to become a public charge—seems to have been a pure question of fact, and the other grounds for exclusion under the Act involved questions that were either solely or at least primarily factual in nature. If we were now called upon to determine the meaning of a provision like the finality provision in the 1891 Act, our precedents would provide the basis for an argument in favor of the interpretation that the Nishimura Ekiu Court reached. The presumption in favor of judicial review, see, e.g., Guerrero-Lasprilla v. Barr, 589 U. S. ___, ___ (2020) (slip op., at 6); Nasrallah v. Barr, 590 U. S. ___, ___–___ (2020) (slip op., at 7–9), could be invoked. So could the rule that \"[i]mplications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction.\" St. Cyr, 533 U. S., at 299; accord, Ex parte Yerger, 8 Wall. 85, 105 (1869). Thus, respondent’s interpretation of the decision in Nishimura Ekiu is wrong, and the same is true of his understanding of the later finality era cases. Rather than relying on the Suspension Clause, those cases simply involved the exercise of the authority conferred by the habeas statute then in effect. This was true of Nishimura Ekiu, Gegiow, and every other finality era case that respondent cites in support of his Suspension Clause argument. See, e.g., Gonzales v. Williams, 192 U. S. 1 (1904); Yee Won v. White, 256 U. S. 399 (1921); Tod v. Waldman, 266 U. S. 113 (1924); United States ex rel. Polymeris v. Trudell, 284 U. S. 279 (1932); United States ex rel. Johnson v. Shaughnessy, 336 U. S. 806 (1949); United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537 (1950); Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953); United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954). Some finality era cases presented pure questions of law, while others involved the application of a legal test to particular facts. At least one involved an alien who had entered illegally. See id., at 262. But none was based on the Suspension Clause. No majority opinion even mentioned the Suspension Clause.25 Indeed, any mention of the Constitution was rare—and unhelpful to respondent’s arguments here.26 And in all the cited cases concerning aliens detained at entry, unlike the case now before us, what was sought—and the only relief considered— was release. Indeed, in an early finality era case, the Court took pains to note that it did not \"express any opinion\" on whether an alien was entitled to enter. Lem Moon Sing v. United States, 158 U. S. 538, 549 (1895). Like the dissent, respondent makes much of certain statements in Heikkila v. Barber, 345 U. S. 229 (1953), which he interprets to substantiate his interpretation of Nishimura Ekiu and the subsequent entry cases discussed above. But he takes these statements out of context and reads far too much into them. Heikkila was not a habeas case, and the question before the Court was whether a deportation order was reviewable under the Administrative Procedure Act (APA). The Court held that the order was not subject to APA review because the Immigration Act of 1917 foreclosed \"judicial review\"—as opposed to review in habeas. 345 U. S., at 234–235. Nothing in Heikkila suggested that the 1891 Act had been found to be partly unconstitutional, and Heikkila certainly did not address the scope of the writ of habeas corpus in 1789. In sum, the Court exercised habeas jurisdiction in the finality era cases because the habeas statute conferred that authority, not because it was required by the Suspension Clause. As a result, these cases cannot support respondent’s argument that the writ of habeas corpus as it was understood when the Constitution was adopted would have allowed him to claim the right to administrative and judicial review while still in custody. C We come, finally, to the more recent cases on which respondent relies. The most recent, Boumediene, is not about immigration at all. It held that suspected foreign terrorists could challenge their detention at the naval base in Guantanamo Bay, Cuba. They had been \"apprehended on the battlefield in Afghanistan\" and elsewhere, not while crossing the border. 553 U. S., at 734. They sought only to be released from Guantanamo, not to enter this country. See, e.g., Brief for Petitioner Al Odah et al. in Al Odah v. United States, decided with Boumediene v. Bush, O. T. 2007, No. 06–1196, p. 39 (arguing that \"habeas contemplates but one remedy,\" \"release\"). And nothing in the Court’s discussion of the Suspension Clause suggested that they could have used habeas as a means of gaining entry. Rather, the Court reaffirmed that release is the habeas remedy though not the \"exclusive\" result of every writ, given that it is often \"appropriate\" to allow the executive to cure defects in a detention. 553 U. S., at 779. Respondent’s other recent case is St. Cyr, in which the Court’s pertinent holding rejected the argument that certain provisions of IIRIRA and the Antiterrorism and Effective Death Penalty Act of 1996 that did not refer expressly to habeas should nevertheless be interpreted as stripping the authority conferred by the habeas statute. In refusing to adopt that interpretation, the Court enlisted a quartet of interpretive canons: \"the strong presumption in favor of judicial review of administrative action,\" \"the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction,\" the rule that a \"clear indication\" of congressional intent is expected when a proposed interpretation would push \"the outer limits of Congress’ power,\" and the canon of constitutional avoidance. 533 U. S., at 298–300. In connection with this final canon, the Court observed: \"Because of [the Suspension] Clause, some ‘judicial intervention in deportation cases’ is unquestionably ‘required by the Constitution.’\" Id., at 300 (quoting Heikkila, 345 U. S., at 235). Respondent pounces on this statement, but like the Heikkila statement on which it relies, it does nothing for him. The writ of habeas corpus as it existed at common law provided a vehicle to challenge all manner of detention by government officials, and the Court had held long before that the writ could be invoked by aliens already in the country who were held in custody pending deportation. St. Cyr reaffirmed these propositions, and this statement in St. Cyr does not signify approval of respondent’s very different attempted use of the writ, which the Court did not consider. IV In addition to his Suspension Clause argument, respondent contends that IIRIRA violates his right to due process by precluding judicial review of his allegedly flawed crediblefear proceeding. Brief for Respondent 38–45. The Ninth Circuit agreed, holding that respondent \"had a constitutional right to expedited removal proceedings that conformed to the dictates of due process.\" 917 F. 3d, at 1111, n. 15 (internal quotation marks omitted). And the Ninth Circuit acknowledged, ibid., that this holding conflicted with the Third Circuit’s decision upholding §1252(e)(2) on the ground that applicants for admission lack due process rights regarding their applications, see Castro, 835 F. 3d, at 445–446. Since due process provided an independent ground for the decision below and since respondent urges us to affirm on this ground, it is hard to understand the dissent’s argument that the due process issue was not \"seriously in dispute below\" or that it is somehow improper for us to decide the issue. Post, at 34. Nor is the dissent correct in defending the Ninth Circuit’s holding. That holding is contrary to more than a century of precedent. In 1892, the Court wrote that as to \"foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law,\" \"the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.\" Nishimura Ekiu, 142 U. S., at 660. Since then, the Court has often reiterated this important rule. See, e.g., Knauff, 338 U. S., at 544 (\"Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned\"); Mezei, 345 U. S., at 212 (same); Landon v. Plasencia, 459 U. S. 21, 32 (1982) (\"This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative\"). Respondent argues that this rule does not apply to him because he was not taken into custody the instant he attempted to enter the country (as would have been the case had he arrived at a lawful port of entry). Because he succeeded in making it 25 yards into U. S. territory before he was caught, he claims the right to be treated more favorably. The Ninth Circuit agreed with this argument. We reject it. It disregards the reason for our century-old rule regarding the due process rights of an alien seeking initial entry. That rule rests on fundamental propositions: \"[T]he power to admit or exclude aliens is a sovereign prerogative,\" id., at 32; the Constitution gives \"the political department of the government\" plenary authority to decide which aliens to admit, Nishimura Ekiu, 142 U. S., at 659; and a concomitant of that power is the power to set the procedures to be followed in determining whether an alien should be admitted, see Knauff, 338 U. S., at 544. This rule would be meaningless if it became inoperative as soon as an arriving alien set foot on U. S. soil. When an alien arrives at a port of entry—for example, an international airport—the alien is on U. S. soil, but the alien is not considered to have entered the country for the purposes of this rule. On the contrary, aliens who arrive at ports of entry—even those paroled elsewhere in the country for years pending removal—are \"treated\" for due process purposes \"as if stopped at the border.\" Mezei, 345 U. S., at 215; see Leng May Ma v. Barber, 357 U. S. 185, 188–190 (1958); Kaplan v. Tod, 267 U. S. 228, 230–231 (1925). The same must be true of an alien like respondent. As previously noted, an alien who tries to enter the country illegally is treated as an \"applicant for admission,\" §1225(a)(1), and an alien who is detained shortly after unlawful entry cannot be said to have \"effected an entry,\" Zadvydas v. Davis, 533 U. S. 678, 693 (2001). Like an alien detained after arriving at a port of entry, an alien like respondent is \"on the threshold.\" Mezei, 345 U. S., at 212. The rule advocated by respondent and adopted by the Ninth Circuit would undermine the \"sovereign prerogative\" of governing admission to this country and create a perverse incentive to enter at an unlawful rather than a lawful location. Plasencia, 459 U. S., at 32. For these reasons, an alien in respondent’s position has only those rights regarding admission that Congress has provided by statute. In respondent’s case, Congress provided the right to a \"determin[ation]\" whether he had \"a significant possibility\" of \"establish[ing] eligibility for asylum,\" and he was given that right. §§1225(b)(1)(B)(ii), (v). Because the Due Process Clause provides nothing more, it does not require review of that determination or how it was made. As applied here, therefore, §1252(e)(2) does not violate due process. Because the Ninth Circuit erred in holding that §1252(e)(2) violates the Suspension Clause and the Due Process Clause, we reverse the judgment and remand the case with directions that the application for habeas corpus be dismissed. It is so ordered."},
{"docket_number": "18-1501", "syllabus": "To punish securities fraud, the Securities and Exchange Commission is authorized to seek \"equitable relief\" in civil proceedings, 15 U. S. C. §78u(d)(5). In Kokesh v. SEC, 581 U. S. ___, this Court held that a disgorgement order in a Securities and Exchange Commission (SEC) enforcement action constitutes a \"penalty\" for purposes of the applicable statute of limitations. The Court did not, however, address whether disgorgement can qualify as \"equitable relief\" under §78u(d)(5), given that equity historically excludes punitive sanctions. Petitioners Charles Liu and Xin Wang solicited foreign nationals to invest in the construction of a cancer-treatment center, but, an SEC investigation revealed, misappropriated much of the funds in violation of the terms of a private offering memorandum. The SEC brought a civil action against petitioners, seeking, as relevant here, disgorgement equal to the full amount petitioners had raised from investors. Petitioners argued that the disgorgement remedy failed to account for their legitimate business expenses, but the District Court disagreed and ordered petitioners jointly and severally liable for the full amount. The Ninth Circuit affirmed. Held: A disgorgement award that does not exceed a wrongdoer’s net profits and is awarded for victims is equitable relief permissible under §78u(d)(5). Pp. 5–20. (a) In interpreting statutes that provide for \"equitable relief,\" this Court analyzes whether a particular remedy falls into \"those categories of relief that were typically available in equity.\" Mertens v. Hewitt Associates, 508 U. S. 248, 256. Relevant here are two principles of equity jurisprudence. Equity practice has long authorized courts to strip wrongdoers of their ill-gotten gains. And to avoid transforming that remedy into a punitive sanction, courts restricted it to an individual wrongdoer’s net profits to be awarded for victims. Pp. 5–14. (1) Whether it is called restitution, an accounting, or disgorgement, the equitable remedy that deprives wrongdoers of their net profits from unlawful activity reflects both the foundational principle that \"it would be inequitable that [a wrongdoer] should make a profit out of his own wrong,\" Root v. Railway Co., 105 U. S. 189, 207, and the countervailing equitable principle that the wrongdoer should not be punished by \"pay[ing] more than a fair compensation to the person wronged,\" Tilghman v. Proctor, 125 U. S. 136, 145–146. The remedy has been a mainstay of equity courts, and is not limited to cases involving a breach of trust or fiduciary duty, see Root, 105 U. S., at 214. Pp. 6–9. (2) To avoid transforming a profits award into a penalty, equity courts restricted the remedy in various ways. A constructive trust was often imposed on wrongful gains for wronged victims. See, e.g., Burdell v. Denig, 92 U. S. 716, 720. Courts also generally awarded profitsbased remedies against individuals or partners engaged in concerted wrongdoing, not against multiple wrongdoers under a joint-and-several liability theory. See, e.g., Ambler v. Whipple, 20 Wall. 546, 559. Finally, courts limited awards to the net profits from wrongdoing after deducting legitimate expenses. See, e.g., Rubber Co. v. Goodyear, 9 Wall. 788, 804. Pp. 9–12. (3) Congress incorporated these longstanding equitable principles into §78u(d)(5), but courts have occasionally awarded disgorgement in ways that test the bounds of equity practice. Petitioners claim that disgorgement is necessarily a penalty under Kokesh, and thus not available at equity. But Kokesh expressly declined to reach that question. The Government contends that the SEC’s interpretation has Congress’ tacit support. But Congress does not enlarge the breadth of an equitable, profit-based remedy simply by using the term \"disgorgement\" in various statutes. Pp. 12–14. (b) Petitioners briefly claim that their disgorgement award crosses the bounds of traditional equity practice by failing to return funds to victims, imposing joint-and-several liability, and declining to deduct business expenses from the award. Because the parties did not fully brief these narrower questions, the Court does not decide them here. But certain principles may guide the lower courts’ assessment of these arguments on remand. Pp. 14–20. (1) Section 78u(d)(5) provides limited guidance as to whether the practice of depositing a defendant’s gains with the Treasury satisfies its command that any remedy be \"appropriate or necessary for the benefit of investors,\" and the equitable nature of the profits remedy generally requires the SEC to return a defendant’s gains to wronged investors. The parties, however, do not identify a specific order in this case directing any proceeds to the Treasury. If one is entered on remand, the lower courts may evaluate in the first instance whether that order would be for the benefit of investors and consistent with equitable principles. Pp. 14–17. (2) Imposing disgorgement liability on a wrongdoer for benefits that accrue to his affiliates through joint-and-several liability runs against the rule in favor of holding defendants individually liable. See Belknap v. Schild, 161 U. S. 10, 25–26. The common law did, however, permit liability for partners engaged in concerted wrongdoing. See, e.g., Ambler, 20 Wall., at 559. On remand, the Ninth Circuit may determine whether the facts are such that petitioners can, consistent with equitable principles, be found liable for profits as partners in wrongdoing or whether individual liability is required. Pp. 17–18. (3) Courts may not enter disgorgement awards that exceed the gains \"made upon any business or investment, when both the receipts and payments are taken into the account.\" Goodyear, 9 Wall., at 804. When the \"entire profit of a business or undertaking\" results from the wrongdoing, a defendant may be denied \"inequitable deductions.\" Root, 105 U. S., at 203. Accordingly, courts must deduct legitimate expenses before awarding disgorgement under §78u(d)(5). The District Court below did not ascertain whether any of petitioners’ expenses were legitimate. On remand, the lower courts should examine whether including such expenses in a profits-based remedy is consistent with the equitable principles underlying §78u(d)(5). Pp. 18–20. 754 Fed. Appx. 505, vacated and remanded.", "opinion": "In Kokesh v. SEC, 581 U. S. ___ (2017), this Court held that a disgorgement order in a Securities and Exchange Commission (SEC) enforcement action imposes a \"penalty\" for the purposes of 28 U. S. C. §2462, the applicable statute of limitations. In so deciding, the Court reserved an antecedent question: whether, and to what extent, the SEC may seek \"disgorgement\" in the first instance through its power to award \"equitable relief \" under 15 U. S. C. §78u(d)(5), a power that historically excludes punitive sanctions. The Court holds today that a disgorgement award that does not exceed a wrongdoer’s net profits and is awarded for victims is equitable relief permissible under §78u(d)(5). The judgment is vacated, and the case is remanded for the courts below to ensure the award was so limited. I A Congress authorized the SEC to enforce the Securities Act of 1933, 48 Stat. 74, as amended, 15 U. S. C. §77a et seq., and the Securities Exchange Act of 1934, 48 Stat. 881, as amended, 15 U. S. C. §78a et seq., and to punish securities fraud through administrative and civil proceedings. In administrative proceedings, the SEC can seek limited civil penalties and \"disgorgement.\" See §77h–1(e) (\"In any cease-and-desist proceeding under subsection (a), the Commission may enter an order requiring accounting and disgorgement\"); see also §77h–1(g) (\"Authority to impose money penalties\"). In civil actions, the SEC can seek civil penalties and \"equitable relief.\" See, e.g., §78u(d)(5) (\"In any action or proceeding brought or instituted by the Commission under any provision of the securities laws, . . . any Federal court may grant . . . any equitable relief that may be appropriate or necessary for the benefit of investors\"); see also §78u(d)(3) (\"Money penalties in civil actions\" (quotation modified)). Congress did not define what falls under the umbrella of \"equitable relief.\" Thus, courts have had to consider which remedies the SEC may impose as part of its §78u(d)(5) powers. Starting with SEC v. Texas Gulf Sulphur Co., 446 F. 2d 1301 (CA2 1971), courts determined that the SEC had authority to obtain what it called \"restitution,\" and what in substance amounted to \"profits\" that \"merely depriv[e]\" a defendant of \"the gains of . . . wrongful conduct.\" Id., at 1307–1308. Over the years, the SEC has continued to request this remedy, later referred to as \"disgorgement,\"1 and courts have continued to award it. See SEC v. Commonwealth Chemical Securities, Inc., 574 F. 2d 90, 95 (CA2 1978) (explaining that, when a court awards \"[d]isgorgement of profits in an action brought by the SEC,\" it is \"exercising the chancellor’s discretion to prevent unjust enrichment\"); see also SEC v. Blatt, 583 F. 2d 1325, 1335 (CA5 1978); SEC v. Washington Cty. Util. Dist., 676 F. 2d 218, 227 (CA6 1982). In Kokesh, this Court determined that disgorgement constituted a \"penalty\" for the purposes of 28 U. S. C. §2462, which establishes a 5-year statute of limitations for \"an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture.\" The Court reached this conclusion based on several considerations, namely, that disgorgement is imposed as a consequence of violating public laws, it is assessed in part for punitive purposes, and in many cases, the award is not compensatory. 581 U. S., at ___–___ (slip op., at 7–9). But the Court did not address whether a §2462 penalty can nevertheless qualify as \"equitable relief \" under §78u(d)(5), given that equity never \"lends its aid to enforce a forfeiture or penalty.\" Marshall v. Vicksburg, 15 Wall. 146, 149 (1873). The Court cautioned, moreover, that its decision should not be interpreted \"as an opinion on whether courts possess authority to order disgorgement in SEC enforcement proceedings.\" Kokesh, 581 U. S., at ___, n. 3 (slip op., at 5, n. 3). This question is now squarely before the Court. B The SEC action and disgorgement award at issue here arise from a scheme to defraud foreign nationals. Petitioners Charles Liu and his wife, Xin (Lisa) Wang, solicited nearly $27 million from foreign investors under the EB–5 Immigrant Investor Program (EB–5 Program). 754 Fed. Appx. 505, 506 (CA9 2018) (case below). The EB–5 Program, administered by the U. S. Citizenship and Immigration Services, permits noncitizens to apply for permanent residence in the United States by investing in approved commercial enterprises that are based on \"proposals for promoting economic growth.\" See USCIS, EB–5 Immigrant Investor Program, https://www.uscis.gov/eb-5. Investments in EB–5 projects are subject to the federal securities laws. Liu sent a private offering memorandum to prospective investors, pledging that the bulk of any contributions would go toward the construction costs of a cancer-treatment center. The memorandum specified that only amounts collected from a small administrative fee would fund \"‘legal, accounting and administration expenses.’\" 754 Fed. Appx., at 507. An SEC investigation revealed, however, that Liu spent nearly $20 million of investor money on ostensible marketing expenses and salaries, an amount far more than what the offering memorandum permitted and far in excess of the administrative fees collected. 262 F. Supp. 3d 957, 960–964 (CD Cal. 2017). The investigation also revealed that Liu diverted a sizable portion of those funds to personal accounts and to a company under Wang’s control. Id., at 961, 964. Only a fraction of the funds were put toward a lease, property improvements, and a proton-therapy machine for cancer treatment. Id., at 964–965. The SEC brought a civil action against petitioners, alleging that they violated the terms of the offering documents by misappropriating millions of dollars. The District Court found for the SEC, granting an injunction barring petitioners from participating in the EB–5 Program and imposing a civil penalty at the highest tier authorized. Id., at 975, 976. It also ordered disgorgement equal to the full amount petitioners had raised from investors, less the $234,899 that remained in the corporate accounts for the project. Id., at 975–976. Petitioners objected that the disgorgement award failed to account for their business expenses. The District Court disagreed, concluding that the sum was a \"reasonable approximation of the profits causally connected to [their] violation.\" Ibid. The court ordered petitioners jointly and severally liable for the full amount that the SEC sought. App. to Pet. for Cert. 62a. The Ninth Circuit affirmed. It acknowledged that Kokesh \"expressly refused to reach\" the issue whether the District Court had the authority to order disgorgement. 754 Fed. Appx., at 509. The court relied on Circuit precedent to conclude that the \"proper amount of disgorgement in a scheme such as this one is the entire amount raised less the money paid back to the investors.\" Ibid.; see also SEC v. JT Wallenbrock & Assocs., 440 F. 3d 1109, 1113, 1114 (CA9 2006) (reasoning that it would be \"unjust to permit the defendants to offset . . . the expenses of running the very business they created to defraud . . . investors\"). We granted certiorari to determine whether §78u(d)(5) authorizes the SEC to seek disgorgement beyond a defendant’s net profits from wrongdoing. 589 U. S. ___ (2019). II Our task is a familiar one. In interpreting statutes like §78u(d)(5) that provide for \"equitable relief,\" this Court analyzes whether a particular remedy falls into \"those categories of relief that were typically available in equity.\" Mertens v. Hewitt Associates, 508 U. S. 248, 256 (1993); see also CIGNA Corp. v. Amara, 563 U. S. 421, 439 (2011 Montanile v. Board of Trustees of Nat. Elevator Industry Health Benefit Plan, 577 U. S. 136, 142 (2016). The \"basic contours of the term are well known\" and can be discerned by consulting works on equity jurisprudence. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, 217 (2002). These works on equity jurisprudence reveal two principles. First, equity practice long authorized courts to strip wrongdoers of their ill-gotten gains, with scholars and courts using various labels for the remedy. Second, to avoid transforming an equitable remedy into a punitive sanction, courts restricted the remedy to an individual wrongdoer’s net profits to be awarded for victims. A Equity courts have routinely deprived wrongdoers of their net profits from unlawful activity, even though that remedy may have gone by different names. Compare, e.g., 1 D. Dobbs, Law of Remedies §4.3(5), p. 611 (1993) (\"Accounting holds the defendant liable for his profits\"), with id., §4.1(1), at 555 (referring to \"restitution\" as the relief that \"measures the remedy by the defendant’s gain and seeks to force disgorgement of that gain\"); see also Restatement (Third) of Restitution and Unjust Enrichment §51, Comment a, p. 204 (2010) (Restatement (Third)) (\"Restitution measured by the defendant’s wrongful gain is frequently called ‘disgorgement.’ Other cases refer to an ‘accounting’ or an ‘accounting for profits’\"); 1 J. Pomeroy, Equity Jurisprudence §101, p. 112 (4th ed. 1918) (describing an accounting as an equitable remedy for the violation of strictly legal primary rights). No matter the label, this \"profit-based measure of unjust enrichment,\" Restatement (Third) §51, Comment a, at 204, reflected a foundational principle: \"[I]t would be inequitable that [a wrongdoer] should make a profit out of his own wrong,\" Root v. Railway Co., 105 U. S. 189, 207 (1882). At the same time courts recognized that the wrongdoer should not profit \"by his own wrong,\" they also recognized the countervailing equitable principle that the wrongdoer should not be punished by \"pay[ing] more than a fair compensation to the person wronged.\" Tilghman v. Proctor, 125 U. S. 136, 145–146 (1888). Decisions from this Court confirm that a remedy tethered to a wrongdoer’s net unlawful profits, whatever the name, has been a mainstay of equity courts. In Porter v. Warner Holding Co., 328 U. S. 395 (1946), the Court interpreted a section of the Emergency Price Control Act of 1942 that encompassed a \"comprehensiv[e]\" grant of \"equitable jurisdiction.\" Id., at 398. \"[O]nce [a District Court’s] equity jurisdiction has been invoked\" under that provision, the Court concluded, \"a decree compelling one to disgorge profits . . . may properly be entered.\" Id., at 398–399. Subsequent cases confirm the \"‘protean character’ of the profits-recovery remedy.\" Petrella v. Metro-GoldwynMayer, Inc., 572 U. S. 663, 668, n. 1 (2014). In Tull v. United States, 481 U. S. 412 (1987), the Court described \"disgorgement of improper profits\" as \"traditionally considered an equitable remedy.\" Id., at 424. While the Court acknowledged that disgorgement was a \"limited form of penalty\" insofar as it takes money out of the wrongdoer’s hands, it nevertheless compared disgorgement to restitution that simply \"‘restor[es] the status quo,’\" thus situating the remedy squarely within the heartland of equity. Ibid. In Great-West, the Court noted that an \"accounting for profits\" was historically a \"form of equitable restitution.\" 534 U. S., at 214, n. 2. And in Kansas v. Nebraska, 574 U. S. 445 (2015), a \"‘basically equitable’\" original jurisdiction proceeding, the Court ordered disgorgement of Nebraska’s gains from exceeding its allocation under an interstate water compact. Id., at 453, 475. Most recently, in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 580 U. S. ___ (2017), the Court canvassed pre-1938 patent cases invoking equity jurisdiction. It noted that many cases sought an \"accounting,\" which it described as an equitable remedy requiring disgorgement of ill-gotten profits. Id., at ___ (slip op., at 11). This Court’s \"transsubstantive guidance on broad and fundamental\" equitable principles, Romag Fasteners, Inc. v. Fossil Group, Inc., 590 U. S. ___, ___ (2020) (slip op., at 5), thus reflects the teachings of equity treatises that identify a defendant’s net profits as a remedy for wrongdoing. Contrary to petitioners’ argument, equity courts did not limit this remedy to cases involving a breach of trust or of fiduciary duty. Brief for Petitioners 28–29. As petitioners acknowledge, courts authorized profits-based relief in patent-infringement actions where no such trust or special relationship existed. Id., at 29; see also Root, 105 U. S., at 214 (\"[I]t is nowhere said that the patentee’s right to an account is based upon the idea that there is a fiduciary relation created between him and the wrong-doer by the fact of infringement\"). Petitioners attempt to distinguish these patent cases by suggesting that an \"accounting\" was appropriate only because Congress explicitly conferred that remedy by statute in 1870. Brief for Petitioners 29 (citing the Act of July 8, 1870, §55, 16 Stat. 206). But patent law had not previously deviated from the general principles outlined above: This Court had developed the rule that a plaintiff may \"recover the amount of . . . profits that the defendants have made by the use of his invention\" through \"a series of decisions under the patent act of 1836, which simply conferred upon the courts of the United States general equity jurisdiction . . . in cases arising under the patent laws.\" Tilghman, 125 U. S., at 144. The 1836 statute, in turn, incorporated the substance of an earlier statute from 1819 which granted courts the ability to \"proceed according to the course and principles of courts of equity\" to \"prevent the violation of patent-rights.\" Root, 105 U. S., at 193. Thus, as these cases demonstrate, equity courts habitually awarded profitsbased remedies in patent cases well before Congress explicitly authorized that form of relief. B While equity courts did not limit profits remedies to particular types of cases, they did circumscribe the award in multiple ways to avoid transforming it into a penalty outside their equitable powers. See Marshall, 15 Wall., at 149. For one, the profits remedy often imposed a constructive trust on wrongful gains for wronged victims. The remedy itself thus converted the wrongdoer, who in many cases was an infringer, \"into a trustee, as to those profits, for the owner of the patent which he infringes.\" Burdell v. Denig, 92 U. S. 716, 720 (1876). In \"converting the infringer into a trustee for the patentee as regards the profits thus made,\" the chancellor \"estimat[es] the compensation due from the infringer to the patentee.\" Packet Co. v. Sickles, 19 Wall. 611, 617–618 (1874); see also Clews v. Jamieson, 182 U. S. 461, 480 (1901) (describing an accounting as involving a \"‘distribution of the trust moneys among all the beneficiaries who are entitled to share therein’\" in an action against the governing committee of a stock exchange). Equity courts also generally awarded profits-based remedies against individuals or partners engaged in concerted wrongdoing, not against multiple wrongdoers under a jointand-several liability theory. See Ambler v. Whipple, 20 Wall. 546, 559 (1874) (ordering an accounting against a partner who had \"knowingly connected himself with and aided in . . . fraud\"). In Elizabeth v. Pavement Co., 97 U. S. 126 (1878), for example, a city engaged contractors to install pavement in a manner that infringed a third party’s patent. The patent holder brought a suit in equity to recover profits from both the city and its contractors. The Court held that only the contractors (the only parties to make a profit) were responsible, even though the parties answered jointly. Id., at 140; see also ibid. (rejecting liability for an individual officer who merely acted as an agent of the defendant and received a salary for his work). The rule against joint-and-several liability for profits that have accrued to another appears throughout equity cases awarding profits. See, e.g., Belknap v. Schild, 161 U. S. 10, 25–26 (1896) (\"The defendants, in any such suit, are therefore liable to account for such profits only as have accrued to themselves from the use of the invention, and not for those which have accrued to another, and in which they have no participation\"); Keystone Mfg. Co. v. Adams, 151 U. S. 139, 148 (1894) (reversing profits award that was based not on what defendant had made from infringement but on what third persons had made from the use of the invention); Jennings v. Carson, 4 Cranch 2, 21 (1807) (holding that an order requiring restitution could not apply to \"those who were not in possession of the thing to be restored\" and \"had no power over it\") (citing Penhallow v. Doane’s Administrators, 3 Dall. 54 (1795) (reversing a restitution award in admiralty that ordered joint damages in excess of what each defendant received)). Finally, courts limited awards to the net profits from wrongdoing, that is, \"the gain made upon any business or investment, when both the receipts and payments are taken into the account.\" Rubber Co. v. Goodyear, 9 Wall. 788, 804 (1870); see also Livingston v. Woodworth, 15 How. 546, 559–560 (1854) (restricting an accounting remedy \"to the actual gains and profits . . . during the time\" the infringing machine \"was in operation and during no other period\" to avoid \"convert[ing] a court of equity into an instrument for the punishment of simple torts\"); Seymour v. McCormick, 16 How. 480, 490 (1854) (rejecting a blanket rule that infringing one component of a machine warranted a remedy measured by the full amounts of the profits earned from the machine); Mowry v. Whitney, 14 Wall. 620, 649 (1872) (vacating an accounting that exceeded the profits from infringement alone); Wooden-Ware Co. v. United States, 106 U. S. 432, 434–435 (1882) (explaining that an innocent trespasser is entitled to deduct labor costs from the gains obtained by wrongfully harvesting lumber). The Court has carved out an exception when the \"entire profit of a business or undertaking\" results from the wrongful activity. Root, 105 U. S., at 203. In such cases, the Court has explained, the defendant \"will not be allowed to diminish the show of profits by putting in unconscionable claims for personal services or other inequitable deductions.\" Ibid. In Goodyear, for example, the Court affirmed an accounting order that refused to deduct expenses under this rule. The Court there found that materials for which expenses were claimed were bought for the purposes of the infringement and \"extraordinary salaries\" appeared merely to be \"dividends of profit under another name.\" 9 Wall., at 803; see also Callaghan v. Myers, 128 U. S. 617, 663–664 (1888) (declining to deduct a defendant’s personal and living expenses from his profits from copyright violations, but distinguishing the expenses from salaries of officers in a corporation). Setting aside that circumstance, however, courts consistently restricted awards to net profits from wrongdoing after deducting legitimate expenses. Such remedies, when assessed against only culpable actors and for victims, fall comfortably within \"those categories of relief that were typically available in equity.\" Mertens, 508 U. S., at 256. C By incorporating these longstanding equitable principles into §78u(d)(5), Congress prohibited the SEC from seeking an equitable remedy in excess of a defendant’s net profits from wrongdoing. To be sure, the SEC originally endeavored to conform its disgorgement remedy to the commonlaw limitations in §78u(d)(5). Over the years, however, courts have occasionally awarded disgorgement in three main ways that test the bounds of equity practice: by ordering the proceeds of fraud to be deposited in Treasury funds instead of disbursing them to victims, imposing joint-andseveral disgorgement liability, and declining to deduct even legitimate expenses from the receipts of fraud.3 The SEC’s disgorgement remedy in such incarnations is in considerable tension with equity practices. Petitioners go further. They claim that this Court effectively decided in Kokesh that disgorgement is necessarily a penalty, and thus not the kind of relief available at equity. Brief for Petitioners 19–20, 22–26. Not so. Kokesh expressly declined to pass on the question. 581 U. S., at ___, n. 3 (slip op., at 5, n. 3). To be sure, the Kokesh Court evaluated a version of the SEC’s disgorgement remedy that seemed to exceed the bounds of traditional equitable principles. But that decision has no bearing on the SEC’s ability to conform future requests for a defendant’s profits to the limits outlined in common-law cases awarding a wrongdoer’s net gains. The Government, for its part, contends that the SEC’s interpretation of the equitable disgorgement remedy has Congress’ tacit support, even if it exceeds the bounds of equity practice. Brief for Respondent 13–21. It points to the fact that Congress has enacted a number of other statutes referring to \"disgorgement.\" That argument attaches undue significance to Congress’ use of the term. It is true that Congress has authorized the SEC to seek \"disgorgement\" in administrative actions. 15 U. S. C. §77h–1(e) (\"In any cease-and-desist proceeding under subsection (a), the Commission may enter an order requiring accounting and disgorgement\"). But it makes sense that Congress would expressly name the equitable powers it grants to an agency for use in administrative proceedings. After all, agencies are unlike federal courts where, \"[u]nless otherwise provided by statute, all . . . inherent equitable powers . . . are available for the proper and complete exercise of that jurisdiction.\" Porter, 328 U. S., at 398. Congress does not enlarge the breadth of an equitable, profit-based remedy simply by using the term \"disgorgement\" in various statutes. The Government argues that under the prior-construction principle, Congress should be presumed to have been aware of the scope of \"disgorgement\" as interpreted by lower courts and as having incorporated the (purportedly) prevailing meaning of the term into its subsequent enactments. Brief for Respondent 24. But \"that canon has no application\" where, among other things, the scope of disgorgement was \"far from ‘settled.’\" Armstrong v. Exceptional Child Center, Inc., 575 U. S. 320, 330 (2015). At bottom, even if Congress employed \"disgorgement\" as a shorthand to cross-reference the relief permitted by §78u(d)(5), it did not silently rewrite the scope of what the SEC could recover in a way that would contravene limitations embedded in the statute. After all, such \"statutory reference[s]\" to a remedy grounded in equity \"must, absent other indication, be deemed to contain the limitations upon its availability that equity typically imposes.\" Great-West, 534 U. S., at 211, n. 1. Accordingly, Congress’ own use of the term \"disgorgement\" in assorted statutes did not expand the contours of that term beyond a defendant’s net profits—a limit established by longstanding principles of equity. III Applying the principles discussed above to the facts of this case, petitioners briefly argue that their disgorgement award is unlawful because it crosses the bounds of traditional equity practice in three ways: It fails to return funds to victims, it imposes joint-and-several liability, and it declines to deduct business expenses from the award. Because the parties focused on the broad question whether any form of disgorgement may be ordered and did not fully brief these narrower questions, we do not decide them here. We nevertheless discuss principles that may guide the lower courts’ assessment of these arguments on remand. A Section 78u(d)(5) restricts equitable relief to that which \"may be appropriate or necessary for the benefit of investors.\" The SEC, however, does not always return the entirety of disgorgement proceeds to investors, instead depositing a portion of its collections in a fund in the Treasury. See SEC, Division of Enforcement, 2019 Ann. Rep. 16–17, https://www.sec.gov/files/enforcement-annual-report2019.pdf. Congress established that fund in the DoddFrank Wall Street Reform and Consumer Protection Act for disgorgement awards that are not deposited in \"disgorgement fund[s]\" or otherwise \"distributed to victims.\" 124 Stat. 1844. The statute provides that these sums may be used to pay whistleblowers reporting securities fraud and to fund the activities of the Inspector General. Ibid. Here, the SEC has not returned the bulk of funds to victims, largely, it contends, because the Government has been unable to collect them.4 The statute provides limited guidance as to whether the practice of depositing a defendant’s gains with the Treasury satisfies the statute’s command that any remedy be \"appropriate or necessary for the benefit of investors.\" The equitable nature of the profits remedy generally requires the SEC to return a defendant’s gains to wronged investors for their benefit. After all, the Government has pointed to no analogous common-law remedy permitting a wrongdoer’s profits to be withheld from a victim indefinitely without being disbursed to known victims. Cf. Root, 105 U. S., at 214– 215 (comparing the accounting remedy to a breach-of-trust action, where a court would require the defendant to \"refund the amount of profit which they have actually realized\"). The Government maintains, however, that the primary function of depriving wrongdoers of profits is to deny them the fruits of their ill-gotten gains, not to return the funds to victims as a kind of restitution. See, e.g., SEC, Report Pursuant to Section 308(C) of the Sarbanes Oxley Act of 2002, p. 3, n. 2 (2003) (taking the position that disgorgement is not intended to make investors whole, but rather to deprive wrongdoers of ill-gotten gains); see also 6 T. Hazen, Law of Securities Regulation §16.18, p. 8 (rev. 7th ed. 2016) (concluding that the remedial nature of the disgorgement remedy does not mean that it is essentially compensatory and concluding that the \"primary function of the remedy is to deny the wrongdoer the fruits of ill-gotten gains\"). Under the Government’s theory, the very fact that it conducted an enforcement action satisfies the requirement that it is \"appropriate or necessary for the benefit of investors.\" But the SEC’s equitable, profits-based remedy must do more than simply benefit the public at large by virtue of depriving a wrongdoer of ill-gotten gains. To hold otherwise would render meaningless the latter part of §78u(d)(5). Indeed, this Court concluded similarly in Mertens when analyzing statutory language accompanying the term \"equitable remedy.\" 508 U. S., at 253 (interpreting the term \"appropriate equitable relief \"). There, the Court found that the additional statutory language must be given effect since the section \"does not, after all, authorize . . . ‘equitable relief ’ at large.\" Ibid. As in Mertens, the phrase \"appropriate or necessary for the benefit of investors\" must mean something more than depriving a wrongdoer of his net profits alone, else the Court would violate the \"cardinal principle of interpretation that courts must give effect, if possible, to every clause and word of a statute.\" Parker Drilling Management Services, Ltd. v. Newton, 587 U. S. ___, ___ (2019) (slip op., at 9) (internal quotation marks omitted). The Government additionally suggests that the SEC’s practice of depositing disgorgement funds with the Treasury may be justified where it is infeasible to distribute the collected funds to investors.5 Brief for Respondent 37. It is an open question whether, and to what extent, that practice nevertheless satisfies the SEC’s obligation to award relief \"for the benefit of investors\" and is consistent with the limitations of §78u(d)(5). The parties have not identified authorities revealing what traditional equitable principles govern when, for instance, the wrongdoer’s profits cannot practically be disbursed to the victims. But we need not address the issue here. The parties do not identify a specific order in this case directing any proceeds to the Treasury. If one is entered on remand, the lower courts may evaluate in the first instance whether that order would indeed be for the benefit of investors as required by §78u(d)(5) and consistent with equitable principles. B The SEC additionally has sought to impose disgorgement liability on a wrongdoer for benefits that accrue to his affiliates, sometimes through joint-and-several liability, in a manner sometimes seemingly at odds with the common-law rule requiring individual liability for wrongful profits. See, e.g., SEC v. Contorinis, 743 F. 3d 296, 302 (CA2 2014) (holding that a defendant could be forced to disgorge not only what he \"personally enjoyed from his exploitation of inside information, but also the profits of such exploitation that he channeled to friends, family, or clients\"); SEC v. Clark, 915 F. 2d 439, 454 (CA9 1990) (\"It is well settled that a tipper can be required to disgorge his tippee’s profits\"); SEC v. Whittemore, 659 F. 3d 1, 10 (CADC 2011) (approving jointand-several disgorgement liability where there is a close relationship between the defendants and collaboration in executing the wrongdoing). That practice could transform any equitable profits-focused remedy into a penalty. Cf. Marshall, 15 Wall., at 149. And it runs against the rule to not impose joint liability in favor of holding defendants \"liable to account for such profits only as have accrued to themselves . . . and not for those which have accrued to another, and in which they have no participation.\" Belknap, 161 U. S., at 25–26; see also Elizabeth v. Pavement Co., 97 U. S. 126 (1878). The common law did, however, permit liability for partners engaged in concerted wrongdoing. See, e.g., Ambler, 20 Wall., at 559. The historic profits remedy thus allows some flexibility to impose collective liability. Given the wide spectrum of relationships between participants and beneficiaries of unlawful schemes—from equally culpable codefendants to more remote, unrelated tipper-tippee arrangements—the Court need not wade into all the circumstances where an equitable profits remedy might be punitive when applied to multiple individuals. Here, petitioners were married. 754 Fed. Appx. 505; 262 F. Supp. 3d, at 960–961. The Government introduced evidence that Liu formed business entities and solicited investments, which he misappropriated. Id., at 961. It also presented evidence that Wang held herself out as the president, and a member of the management team, of an entity to which Liu directed misappropriated funds. Id., at 964. Petitioners did not introduce evidence to suggest that one spouse was a mere passive recipient of profits. Nor did they suggest that their finances were not commingled, or that one spouse did not enjoy the fruits of the scheme, or that other circumstances would render a joint-and-several disgorgement order unjust. Cf. SEC v. Hughes Capital Corp., 124 F. 3d 449, 456 (CA3 1997) (finding that codefendant spouse was liable for unlawful proceeds where they funded her \"lavish lifestyle\"). We leave it to the Ninth Circuit on remand to determine whether the facts are such that petitioners can, consistent with equitable principles, be found liable for profits as partners in wrongdoing or whether individual liability is required. C Courts may not enter disgorgement awards that exceed the gains \"made upon any business or investment, when both the receipts and payments are taken into the account.\" Goodyear, 9 Wall., at 804; see also Restatement (Third) §51, Comment h, at 216 (reciting the general rule that a defendant is entitled to a deduction for all marginal costs incurred in producing the revenues that are subject to disgorgement). Accordingly, courts must deduct legitimate expenses before ordering disgorgement under §78u(d)(5). A rule to the contrary that \"make[s] no allowance for the cost and expense of conducting [a] business\" would be \"inconsistent with the ordinary principles and practice of courts of chancery.\" Tilghman, 125 U. S., at 145–146; cf. SEC v. Brown, 658 F. 3d 858, 861 (CA8 2011) (declining to deduct even legitimate expenses like payments to innocent thirdparty employees and vendors). The District Court below declined to deduct expenses on the theory that they were incurred for the purposes of furthering an entirely fraudulent scheme. It is true that when the \"entire profit of a business or undertaking\" results from the wrongdoing, a defendant may be denied \"inequitable deductions\" such as for personal services. Root, 105 U. S., at 203. But that exception requires ascertaining whether expenses are legitimate or whether they are merely wrongful gains \"under another name.\" Goodyear, 9 Wall., at 803. Doing so will ensure that any disgorgement award falls within the limits of equity practice while preventing defendants from profiting from their own wrong. Root, 105 U. S., at 207. Although it is not necessary to set forth more guidance addressing the various circumstances where a defendant’s expenses might be considered wholly fraudulent, it suffices to note that some expenses from petitioners’ scheme went toward lease payments and cancer-treatment equipment. Such items arguably have value independent of fueling a fraudulent scheme. We leave it to the lower court to examine whether including those expenses in a profits-based remedy is consistent with the equitable principles underlying §78u(d)(5). For the foregoing reasons, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with this opinion."},
{"docket_number": "18-587", "syllabus": "In 2012, the Department of Homeland Security (DHS) issued a memorandum announcing an immigration relief program known as Deferred Action for Childhood Arrivals (DACA), which allows certain unauthorized aliens who arrived in the United States as children to apply for a two-year forbearance of removal. Those granted such relief become eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity. Two years later, DHS expanded DACA eligibility and created a related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). If implemented, that program would have made 4.3 million parents of U. S. citizens or lawful permanent residents eligible for the same forbearance from removal, work eligibility, and other benefits as DACA recipients. Texas, joined by 25 other States, secured a nationwide preliminary injunction barring implementation of both the DACA expansion and DAPA. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act (INA), which carefully defines eligibility for benefits. This Court affirmed by an equally divided vote, and the litigation then continued in the District Court. In June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum, citing, among other reasons, the ongoing suit by Texas and new policy priorities. That September, the Attorney General advised Acting Secretary of Homeland Security Elaine C. Duke that DACA shared DAPA’s legal flaws and should also be rescinded. The next day, Duke acted on that advice. Taking into consideration the Fifth Circuit and Supreme Court rulings and the Attorney General’s letter, Duke decided to terminate the program. She explained that DHS would no longer accept new applications, but that existing DACA recipients whose benefits were set to expire within six months could apply for a two-year renewal. For all other DACA recipients, previously issued grants of relief would expire on their own terms, with no prospect for renewal. Several groups of plaintiffs challenged Duke’s decision to rescind DACA, claiming that it was arbitrary and capricious in violation of the Administrative Procedure Act (APA) and infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause. District Courts in California (Regents, No. 18–587), New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588) all ruled for the plaintiffs. Each court rejected the Government’s arguments that the claims were unreviewable under the APA and that the INA deprived the courts of jurisdiction. In Regents and Batalla Vidal, the District Courts further held that the equal protection claims were adequately alleged, and they entered coextensive nationwide preliminary injunctions based on the conclusion that the plaintiffs were likely to succeed on their APA claims. The District Court in NAACP took a different approach. It deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, finding that the rescission was inadequately explained. The court then stayed its order for 90 days to permit DHS to reissue a memorandum rescinding DACA, this time with a fuller explanation of the conclusion that DACA was unlawful. Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded to the court’s order. She declined to disturb or replace Duke’s rescission decision and instead explained why she thought her predecessor’s decision was sound. In addition to reiterating the illegality conclusion, she offered several new justifications for the rescission. The Government moved for the District Court to reconsider in light of this additional explanation, but the court concluded that the new reasoning failed to elaborate meaningfully on the illegality rationale. The Government appealed the various District Court decisions to the Second, Ninth, and D. C. Circuits, respectively. While those appeals were pending, the Government filed three petitions for certiorari before judgment. Following the Ninth Circuit affirmance in Regents, this Court granted certiorari. Held: The judgment in No. 18–587 is vacated in part and reversed in part; the judgment in No. 18–588 is affirmed; the February 13, 2018 order in No. 18–589 is vacated, the November 9, 2017 order is affirmed in part, and the March 29, 2018 order is reversed in part; and all of the cases are remanded. No. 18–587, 908 F. 3d 476, vacated in part and reversed in part; No. 18– 588, affirmed; and No. 18–589, February 13, 2018 order vacated, November 9, 2017 order affirmed in part, and March 29, 2018 order reversed in part; all cases remanded. THE CHIEF JUSTICE delivered the opinion of the Court, except as to Part IV, concluding: 1. DHS’s rescission decision is reviewable under the APA and is within this Court’s jurisdiction. Pp. 9–13. (a) The APA’s \"basic presumption of judicial review\" of agency action, Abbott Laboratories v. Gardner, 387 U. S. 136, 140, can be rebutted by showing that the \"agency action is committed to agency discretion by law,\" 5 U. S. C. §701(a)(2). In Heckler v. Chaney, the Court held that this narrow exception includes an agency’s decision not to institute an enforcement action. 470 U. S. 821, 831–832. The Government contends that DACA is a general non-enforcement policy equivalent to the individual non-enforcement decision in Chaney. But the DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. Therefore, unlike the non-enforcement decision in Chaney, DACA’s creation—and its rescission—is an \"action [that] provides a focus for judicial review.\" Id., at 832. In addition, by virtue of receiving deferred action, 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. Access to such benefits is an interest \"courts often are called upon to protect.\" Ibid. DACA’s rescission is thus subject to review under the APA. Pp. 9–12. (b) The two jurisdictional provisions of the INA invoked by the Government do not apply. Title 8 U. S. C. §1252(b)(9), which bars review of claims arising from \"action[s]\" or \"proceeding[s] brought to remove an alien,\" is inapplicable where, as here, the parties do not challenge any removal proceedings. And the rescission is not a decision \"to commence proceedings, adjudicate cases, or execute removal orders\" within the meaning of §1252(g). Pp. 12–13. 2. DHS’s decision to rescind DACA was arbitrary and capricious under the APA. Pp. 13–26. (a) In assessing the rescission, the Government urges the Court to consider not just the contemporaneous explanation offered by Acting Secretary Duke but also the additional reasons supplied by Secretary Nielsen nine months later. Judicial review of agency action, however, is limited to \"the grounds that the agency invoked when it took the action.\" Michigan v. EPA, 576 U. S. 743, 758. If those grounds are inadequate, a court may remand for the agency to offer \"a fuller explanation of the agency’s reasoning at the time of the agency action,\" Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654 (emphasis added), or to \"deal with the problem afresh\" by taking new agency action, SEC v. Chenery Corp., 332 U. S. 194, 201. Because Secretary Nielsen chose not to take new action, she was limited to elaborating on the agency’s original reasons. But her reasoning bears little relationship to that of her predecessor and consists primarily of impermissible \"post hoc rationalization.\" Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 420. The rule requiring a new decision before considering new reasons is not merely a formality. It serves important administrative law values by promoting agency accountability to the public, instilling confidence that the reasons given are not simply convenient litigating positions, and facilitating orderly review. Each of these values would be markedly undermined if this Court allowed DHS to rely on reasons offered nine months after the rescission and after three different courts had identified flaws in the original explanation. Pp. 13–17. (b) Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the problem before the agency. Although Duke was bound by the Attorney General’s determination that DACA is illegal, see 8 U. S. C. §1103(a)(1), deciding how best to address that determination involved important policy choices reserved for DHS. Acting Secretary Duke plainly exercised such discretionary authority in winding down the program, but she did not appreciate the full scope of her discretion. The Attorney General concluded that the legal defects in DACA mirrored those that the courts had recognized in DAPA. The Fifth Circuit, the highest court to offer a reasoned opinion on DAPA’s legality, found that DAPA violated the INA because it extended eligibility for benefits to a class of unauthorized aliens. But the defining feature of DAPA (and DACA) is DHS’s decision to defer removal, and the Fifth Circuit carefully distinguished that forbearance component from the associated benefits eligibility. Eliminating benefits eligibility while continuing forbearance thus remained squarely within Duke’s discretion. Yet, rather than addressing forbearance in her decision, Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as sufficient to rescind the entire policy. 463 U. S. 29, 51. While DHS was not required to \"consider all policy alternatives,\" ibid., deferred action was \"within the ambit of the existing\" policy, ibid.; indeed, it was the centerpiece of the policy. In failing to consider the option to retain deferred action, Duke \"failed to supply the requisite ‘reasoned analysis.’ \" Id., at 57. That omission alone renders Duke’s decision arbitrary and capricious, but it was not the only defect. Duke also failed to address whether there was \"legitimate reliance\" on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742. Certain features of the DACA policy may affect the strength of any reliance interests, but those features are for the agency to consider in the first instance. DHS has flexibility in addressing any reliance interests and could have considered various accommodations. While the agency was not required to pursue these accommodations, it was required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns. Its failure to do so was arbitrary and capricious. Pp. 17–26. THE CHIEF JUSTICE, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN, concluded in Part IV that respondents’ claims fail to establish a plausible inference that the rescission was motivated by animus in violation of the equal protection guarantee of the Fifth Amendment. Pp. 27–29.", "opinion": "In the summer of 2012, the Department of Homeland Security (DHS) announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. That program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity. Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. The Department’s Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision. For the reasons that follow, we conclude that the Acting Secretary did violate the APA, and that the rescission must be vacated. I A In June 2012, the Secretary of Homeland Security issued a memorandum announcing an immigration relief program for \"certain young people who were brought to this country as children.\" App. to Pet. for Cert. in No. 18–587, p. 97a (App. to Pet. for Cert.). Known as DACA, the program applies to childhood arrivals who were under age 31 in 2012; have continuously resided here since 2007; are current students, have completed high school, or are honorably discharged veterans; have not been convicted of any serious crimes; and do not threaten national security or public safety. Id., at 98a. DHS concluded that individuals who meet these criteria warrant favorable treatment under the immigration laws because they \"lacked the intent to violate the law,\" are \"productive\" contributors to our society, and \"know only this country as home.\" Id., at 98a–99a. \"[T]o prevent [these] low priority individuals from being removed from the United States,\" the DACA Memorandum instructs Immigration and Customs Enforcement to \"exercise prosecutorial discretion[] on an individual basis . . . by deferring action for a period of two years, subject to renewal.\" Id., at 100a. In addition, it directs U. S. Citizenship and Immigration Services (USCIS) to \"accept applications to determine whether these individuals qualify for work authorization during this period of deferred action,\" id., at 101a, as permitted under regulations long predating DACA’s creation, see 8 CFR §274a.12(c)(14) (2012) (permitting work authorization for deferred action recipients who establish \"economic necessity\"); 46 Fed. Reg. 25080–25081 (1981) (similar). Pursuant to other regulations, deferred action recipients are considered \"lawfully present\" for purposes of, and therefore eligible to receive, Social Security and Medicare benefits. See 8 CFR §1.3(a)(4)(vi); 42 CFR §417.422(h) (2012). In November 2014, two years after DACA was promulgated, DHS issued a memorandum announcing that it would expand DACA eligibility by removing the age cap, shifting the date-of-entry requirement from 2007 to 2010, and extending the deferred action and work authorization period to three years. App. to Pet. for Cert. 106a–107a. In the same memorandum, DHS created a new, related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. That program would have authorized deferred action for up to 4.3 million parents whose children were U. S. citizens or lawful permanent residents. These parents were to enjoy the same forbearance, work eligibility, and other benefits as DACA recipients. Before the DAPA Memorandum was implemented, 26 States, led by Texas, filed suit in the Southern District of Texas. The States contended that DAPA and the DACA expansion violated the APA’s notice and comment requirement, the Immigration and Nationality Act (INA), and the Executive’s duty under the Take Care Clause of the Constitution. The District Court found that the States were likely to succeed on the merits of at least one of their claims and entered a nationwide preliminary injunction barring implementation of both DAPA and the DACA expansion. See Texas v. United States, 86 F. Supp. 3d 591, 677–678 (2015). A divided panel of the Court of Appeals for the Fifth Circuit affirmed the preliminary injunction. Texas v. United States, 809 F. 3d 134, 188 (2015). In opposing the injunction, the Government argued that the DAPA Memorandum reflected an unreviewable exercise of the Government’s enforcement discretion. The Fifth Circuit majority disagreed. It reasoned that the deferred action described in the DAPA Memorandum was \"much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.\" Id., at 166. From this, the majority concluded that the creation of the DAPA program was not an unreviewable action \"committed to agency discretion by law.\" Id., at 169 (quoting 5 U. S. C. §701(a)(2)). The majority then upheld the injunction on two grounds. It first concluded the States were likely to succeed on their procedural claim that the DAPA Memorandum was a substantive rule that was required to undergo notice and comment. It then held that the APA required DAPA to be set aside because the program was \"manifestly contrary\" to the INA, which \"expressly and carefully provides legal designations allowing defined classes\" to \"receive the benefits\" associated with \"lawful presence\" and to qualify for work authorization, 809 F. 3d, at 179–181, 186 (internal quotation marks omitted). Judge King dissented. This Court affirmed the Fifth Circuit’s judgment by an equally divided vote, which meant that no opinion was issued. United States v. Texas, 579 U. S. ___ (2016) (per curiam). For the next year, litigation over DAPA and the DACA expansion continued in the Southern District of Texas, while implementation of those policies remained enjoined. Then, in June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum. In explaining that decision, DHS cited the preliminary injunction and ongoing litigation in Texas, the fact that DAPA had never taken effect, and the new administration’s immigration enforcement priorities. Three months later, in September 2017, Attorney General Jefferson B. Sessions III sent a letter to Acting Secretary of Homeland Security Elaine C. Duke, \"advis[ing]\" that DHS \"should rescind\" DACA as well. App. 877. Citing the Fifth Circuit’s opinion and this Court’s equally divided affirmance, the Attorney General concluded that DACA shared the \"same legal . . . defects that the courts recognized as to DAPA\" and was \"likely\" to meet a similar fate. Id., at 878. \"In light of the costs and burdens\" that a rescission would \"impose[] on DHS,\" the Attorney General urged DHS to \"consider an orderly and efficient wind-down process.\" Ibid. The next day, Duke acted on the Attorney General’s advice. In her decision memorandum, Duke summarized the history of the DACA and DAPA programs, the Fifth Circuit opinion and ensuing affirmance, and the contents of the Attorney General’s letter. App. to Pet. for Cert. 111a–117a. \"Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings\" and the \"letter from the Attorney General,\" she concluded that the \"DACA program should be terminated.\" Id., at 117a. Duke then detailed how the program would be wound down: No new applications would be accepted, but DHS would entertain applications for two-year renewals from DACA recipients whose benefits were set to expire within six months. For all other DACA recipients, previously issued grants of deferred action and work authorization would not be revoked but would expire on their own terms, with no prospect for renewal. Id., at 117a–118a. B Within days of Acting Secretary Duke’s rescission announcement, multiple groups of plaintiffs ranging from individual DACA recipients and States to the Regents of the University of California and the National Association for the Advancement of Colored People challenged her decision in the U. S. District Courts for the Northern District of California (Regents, No. 18–587), the Eastern District of New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588). The relevant claims are that the rescission was arbitrary and capricious in violation of the APA and that it infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause.1 All three District Courts ruled for the plaintiffs, albeit at different stages of the proceedings.2 In doing so, each court rejected the Government’s threshold arguments that the claims were unreviewable under the APA and that the INA deprived the court of jurisdiction. 298 F. Supp. 3d 209, 223–224, 234–235 (DC 2018); 279 F. Supp. 3d 1011, 1029– 1033 (ND Cal. 2018); 295 F. Supp. 3d 127, 150, 153–154 (EDNY 2017). In Regents and Batalla Vidal, the District Courts held that the equal protection claims were adequately alleged. 298 F. Supp. 3d 1304, 1315 (ND Cal. 2018); 291 F. Supp. 3d 260, 279 (EDNY 2018). Those courts also entered coextensive nationwide preliminary injunctions, based on the conclusion that the plaintiffs were likely to succeed on the merits of their claims that the rescission was arbitrary and capricious. These injunctions did not require DHS to accept new applications, but did order the agency to allow DACA recipients to \"renew their enrollments.\" 279 F. Supp. 3d, at 1048; see 279 F. Supp. 3d 401, 437 (EDNY 2018). In NAACP, the D. C. District Court took a different course. In April 2018, it deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, holding that Acting Secretary Duke’s \"conclusory statements were insufficient to explain the change in [the agency’s] view of DACA’s lawfulness.\" 298 F. Supp. 3d, at 243. The District Court stayed its order for 90 days to permit DHS to \"reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.\" Id., at 245. Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded via memorandum. App. to Pet. for Cert. 120a–126a. She explained that, \"[h]aving considered the Duke memorandum,\" she \"decline[d] to disturb\" the rescission. Id., at 121a. Secretary Nielsen went on to articulate her \"understanding\" of Duke’s memorandum, identifying three reasons why, in Nielsen’s estimation, \"the decision to rescind the DACA policy was, and remains, sound.\" Ibid. First, she reiterated that, \"as the Attorney General concluded, the DACA policy was contrary to law.\" Id., at 122a. Second, she added that, regardless, the agency had \"serious doubts about [DACA’s] legality\" and, for law enforcement reasons, wanted to avoid \"legally questionable\" policies. Id., at 123a. Third, she identified multiple policy reasons for rescinding DACA, including (1) the belief that any class-based immigration relief should come from Congress, not through executive non-enforcement; (2) DHS’s preference for exercising prosecutorial discretion on \"a truly individualized, case-by-case basis\"; and (3) the importance of \"project[ing] a message\" that immigration laws would be enforced against all classes and categories of aliens. Id., at 123a–124a. In her final paragraph, Secretary Nielsen acknowledged the \"asserted reliance interests\" in DACA’s continuation but concluded that they did not \"outweigh the questionable legality of the DACA policy and the other reasons\" for the rescission discussed in her memorandum. Id., at 125a. The Government asked the D. C. District Court to revise its prior order in light of the reasons provided by Secretary Nielsen, but the court declined. In the court’s view, the new memorandum, which \"fail[ed] to elaborate meaningfully\" on the agency’s illegality rationale, still did not provide an adequate explanation for the September 2017 rescission. 315 F. Supp. 3d 457, 460, 473–474 (2018). The Government appealed the various District Court decisions to the Second, Ninth, and D. C. Circuits, respectively. In November 2018, while those appeals were pending, the Government simultaneously filed three petitions for certiorari before judgment. After the Ninth Circuit affirmed the nationwide injunction in Regents, see 908 F. 3d 476 (2018), but before rulings from the other two Circuits, we granted the petitions and consolidated the cases for argument. 588 U. S. ___ (2019). The issues raised here are (1) whether the APA claims are reviewable, (2) if so, whether the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs have stated an equal protection claim. II The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so. The APA \"sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.\" Franklin v. Massachusetts, 505 U. S. 788, 796 (1992). It requires agencies to engage in \"reasoned decisionmaking,\" Michigan v. EPA, 576 U. S. 743, 750 (2015) (internal quotation marks omitted), and directs that agency actions be \"set aside\" if they are \"arbitrary\" or \"capricious,\" 5 U. S. C. §706(2)(A). Under this \"narrow standard of review, . . . a court is not to substitute its judgment for that of the agency,\" FCC v. Fox Television Stations, Inc., 556 U. S. 502, 513 (2009) (internal quotation marks omitted), but instead to assess only whether the decision was \"based on a consideration of the relevant factors and whether there has been a clear error of judgment,\" Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971). But before determining whether the rescission was arbitrary and capricious, we must first address the Government’s contentions that DHS’s decision is unreviewable under the APA and outside this Court’s jurisdiction. A The APA establishes a \"basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action.’\" Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967) (quoting §702). That presumption can be rebutted by a showing that the relevant statute \"preclude[s]\" review, §701(a)(1), or that the \"agency action is committed to agency discretion by law,\" §701(a)(2). The latter exception is at issue here. To \"honor the presumption of review, we have read the exception in §701(a)(2) quite narrowly,\" Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U. S. ___, ___ (2018) (slip op., at 12), confining it to those rare \"administrative decision[s] traditionally left to agency discretion,\" Lincoln v. Vigil, 508 U. S. 182, 191 (1993). This limited category of unreviewable actions includes an agency’s decision not to institute enforcement proceedings, Heckler v. Chaney, 470 U. S. 821, 831–832 (1985), and it is on that exception that the Government primarily relies. In Chaney, several death-row inmates petitioned the Food and Drug Administration (FDA) to take enforcement action against two States to prevent their use of certain drugs for lethal injection. The Court held that the FDA’s denial of that petition was presumptively unreviewable in light of the well-established \"tradition\" that \"an agency’s decision not to prosecute or enforce\" is \"generally committed to an agency’s absolute discretion.\" Id., at 831. We identified a constellation of reasons that underpin this tradition. To start, a non-enforcement decision \"often involves a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise,\" such as \"whether the particular enforcement action requested best fits the agency’s overall policies.\" Ibid. The decision also mirrors, \"to some extent,\" a prosecutor’s decision not to indict, which has \"long been regarded as the special province of the Executive Branch.\" Id., at 832. And, as a practical matter, \"when an agency refuses to act\" there is no action to \"provide[] a focus for judicial review.\" Ibid. The Government contends that a general non-enforcement policy is equivalent to the individual non-enforcement decision at issue in Chaney. In each case, the Government argues, the agency must balance factors peculiarly within its expertise, and does so in a manner akin to a criminal prosecutor. Building on that premise, the Government argues that the rescission of a non-enforcement policy is no different—for purposes of reviewability—from the adoption of that policy. While the rescission may lead to increased enforcement, it does not, by itself, constitute a particular enforcement action. Applying this logic to the facts here, the Government submits that DACA is a non-enforcement policy and that its rescission is therefore unreviewable. But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely \"refus[e] to institute proceedings\" against a particular entity or even a particular class. Ibid. Instead, it directed USCIS to \"establish a clear and efficient process\" for identifying individuals who met the enumerated criteria. App. to Pet. for Cert. 100a. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively \"adjudicat[ions].\" Id., at 117a. And the result of these adjudications—DHS’s decision to \"grant deferred action,\" Brief for Petitioners 45—is an \"affirmative act of approval,\" the very opposite of a \"refus[al] to act,\" Chaney, 470 U. S., at 831–832. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an \"action [that] provides a focus for judicial review.\" Id., at 832. The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. See supra, at 3. Unlike an agency’s refusal to take requested enforcement action, access to these types of benefits is an interest \"courts often are called upon to protect.\" Chaney, 470 U. S., at 832. See also Barnhart v. Thomas, 540 U. S. 20 (2003) (reviewing eligibility determination for Social Security benefits). Because the DACA program is more than a non-enforcement policy, its rescission is subject to review under the APA. B The Government also invokes two jurisdictional provisions of the INA as independent bars to review. Neither applies. Section 1252(b)(9) bars review of claims arising from \"action[s]\" or \"proceeding[s] brought to remove an alien.\" 66 Stat. 209, as amended, 8 U. S. C. §1252(b)(9). That targeted language is not aimed at this sort of case. As we have said before, §1252(b)(9) \"does not present a jurisdictional bar\" where those bringing suit \"are not asking for review of an order of removal,\" \"the decision . . . to seek removal,\" or \"the process by which . . . removability will be determined.\" Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 10–11); id., at ___ (BREYER, J., dissenting) (slip op., at 31). And it is certainly not a bar where, as here, the parties are not challenging any removal proceedings. Section 1252(g) is similarly narrow. That provision limits review of cases \"arising from\" decisions \"to commence proceedings, adjudicate cases, or execute removal orders.\" §1252(g). We have previously rejected as \"implausible\" the Government’s suggestion that §1252(g) covers \"all claims arising from deportation proceedings\" or imposes \"a general jurisdictional limitation.\" Reno v. American-Arab AntiDiscrimination Comm., 525 U. S. 471, 482 (1999). The rescission, which revokes a deferred action program with associated benefits, is not a decision to \"commence proceedings,\" much less to \"adjudicate\" a case or \"execute\" a removal order. With these preliminary arguments out of the way, we proceed to the merits. III A Deciding whether agency action was adequately explained requires, first, knowing where to look for the agency’s explanation. The natural starting point here is the explanation provided by Acting Secretary Duke when she announced the rescission in September 2017. But the Government urges us to go on and consider the June 2018 memorandum submitted by Secretary Nielsen as well. That memo was prepared after the D. C. District Court vacated the Duke rescission and gave DHS an opportunity to \"reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.\" 298 F. Supp. 3d, at 245. According to the Government, the Nielsen Memorandum is properly before us because it was invited by the District Court and reflects the views of the Secretary of Homeland Security—the official responsible for immigration policy. Respondents disagree, arguing that the Nielsen Memorandum, issued nine months after the rescission, impermissibly asserts prudential and policy reasons not relied upon by Duke. It is a \"foundational principle of administrative law\" that judicial review of agency action is limited to \"the grounds that the agency invoked when it took the action.\" Michigan, 576 U. S., at 758. If those grounds are inadequate, a court may remand for the agency to do one of two things: First, the agency can offer \"a fuller explanation of the agency’s reasoning at the time of the agency action.\" Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654 (1990) (emphasis added). See also Alpharma, Inc. v. Leavitt, 460 F. 3d 1, 5–6 (CADC 2006) (Garland, J.) (permitting an agency to provide an \"amplified articulation\" of a prior \"conclusory\" observation (internal quotation marks omitted)). This route has important limitations. When an agency’s initial explanation \"indicate[s] the determinative reason for the final action taken,\" the agency may elaborate later on that reason (or reasons) but may not provide new ones. Camp v. Pitts, 411 U. S. 138, 143 (1973) (per curiam). Alternatively, the agency can \"deal with the problem afresh\" by taking new agency action. SEC v. Chenery Corp., 332 U. S. 194, 201 (1947) (Chenery II). An agency taking this route is not limited to its prior reasons but must comply with the procedural requirements for new agency action. The District Court’s remand thus presented DHS with a choice: rest on the Duke Memorandum while elaborating on its prior reasoning, or issue a new rescission bolstered by new reasons absent from the Duke Memorandum. Secretary Nielsen took the first path. Rather than making a new decision, she \"decline[d] to disturb the Duke memorandum’s rescission\" and instead \"provide[d] further explanation\" for that action. App. to Pet. for Cert. 121a. Indeed, the Government’s subsequent request for reconsideration described the Nielsen Memorandum as \"additional explanation for [Duke’s] decision\" and asked the District Court to \"leave in place [Duke’s] September 5, 2017 decision to rescind the DACA policy.\" Motion to Revise Order in No. 17– cv–1907 etc. (D DC), pp. 2, 19. Contrary to the position of the Government before this Court, and of JUSTICE KAVANAUGH in dissent, post, at 4 (opinion concurring in judgment in part and dissenting in part), the Nielsen Memorandum was by its own terms not a new rule implementing a new policy. Because Secretary Nielsen chose to elaborate on the reasons for the initial rescission rather than take new administrative action, she was limited to the agency’s original reasons, and her explanation \"must be viewed critically\" to ensure that the rescission is not upheld on the basis of impermissible \"post hoc rationalization.\" Overton Park, 401 U. S., at 420. But despite purporting to explain the Duke Memorandum, Secretary Nielsen’s reasoning bears little relationship to that of her predecessor. Acting Secretary Duke rested the rescission on the conclusion that DACA is unlawful. Period. See App. to Pet. for Cert. 117a. By contrast, Secretary Nielsen’s new memorandum offered three \"separate and independently sufficient reasons\" for the rescission, id., at 122a, only the first of which is the conclusion that DACA is illegal. Her second reason is that DACA is, at minimum, legally questionable and should be terminated to maintain public confidence in the rule of law and avoid burdensome litigation. No such justification can be found in the Duke Memorandum. Legal uncertainty is, of course, related to illegality. But the two justifications are meaningfully distinct, especially in this context. While an agency might, for one reason or another, choose to do nothing in the face of uncertainty, illegality presumably requires remedial action of some sort. The policy reasons that Secretary Nielsen cites as a third basis for the rescission are also nowhere to be found in the Duke Memorandum. That document makes no mention of a preference for legislative fixes, the superiority of case-by-case decision making, the importance of sending a message of robust enforcement, or any other policy consideration. Nor are these points included in the legal analysis from the Fifth Circuit and the Attorney General. They can be viewed only as impermissible post hoc rationalizations and thus are not properly before us. The Government, echoed by JUSTICE KAVANAUGH, protests that requiring a new decision before considering Nielsen’s new justifications would be \"an idle and useless formality.\" NLRB v. Wyman-Gordon Co., 394 U. S. 759, 766, n. 6 (1969) (plurality opinion). See also post, at 5. Procedural requirements can often seem such. But here the rule serves important values of administrative law. Requiring a new decision before considering new reasons promotes \"agency accountability,\" Bowen v. American Hospital Assn., 476 U. S. 610, 643 (1986), by ensuring that parties and the public can respond fully and in a timely manner to an agency’s exercise of authority. Considering only contemporaneous explanations for agency action also instills confidence that the reasons given are not simply \"convenient litigating position[s].\" Christopher v. SmithKline Beecham Corp., 567 U. S. 142, 155 (2012) (internal quotation marks omitted). Permitting agencies to invoke belated justifications, on the other hand, can upset \"the orderly functioning of the process of review,\" SEC v. Chenery Corp., 318 U. S. 80, 94 (1943), forcing both litigants and courts to chase a moving target. Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered nine months after Duke announced the rescission and after three different courts had identified flaws in the original explanation. JUSTICE KAVANAUGH asserts that this \"foundational principle of administrative law,\" Michigan, 576 U. S., at 758, actually limits only what lawyers may argue, not what agencies may do. Post, at 5. While it is true that the Court has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc rationalizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency or by agency officials themselves. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 539 (1981) (\"[T]he post hoc rationalizations of the agency . . . cannot serve as a sufficient predicate for agency action.\"); Overton Park, 401 U. S., at 419 (rejecting \"litigation affidavits\" from agency officials as \"merely ‘post hoc’ rationalizations\").3 Justice Holmes famously wrote that \"[m]en must turn square corners when they deal with the Government.\" Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). But it is also true, particularly when so much is at stake, that \"the Government should turn square corners in dealing with the people.\" St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision. B We turn, finally, to whether DHS’s decision to rescind DACA was arbitrary and capricious. As noted earlier, Acting Secretary Duke’s justification for the rescission was succinct: \"Taking into consideration\" the Fifth Circuit’s conclusion that DAPA was unlawful because it conferred benefits in violation of the INA, and the Attorney General’s conclusion that DACA was unlawful for the same reason, she concluded—without elaboration—that the \"DACA program should be terminated.\" App. to Pet. for Cert. 117a. Respondents maintain that this explanation is deficient for three reasons. Their first and second arguments work in tandem, claiming that the Duke Memorandum does not adequately explain the conclusion that DACA is unlawful, and that this conclusion is, in any event, wrong. While those arguments carried the day in the lower courts, in our view they overlook an important constraint on Acting Secretary Duke’s decisionmaking authority—she was bound by the Attorney General’s legal determination. The same statutory provision that establishes the Secretary of Homeland Security’s authority to administer and enforce immigration laws limits that authority, specifying that, with respect to \"all questions of law,\" the determinations of the Attorney General \"shall be controlling.\" 8 U. S. C. §1103(a)(1). Respondents are aware of this constraint. Indeed they emphasized the point in the reviewability sections of their briefs. But in their merits arguments, respondents never addressed whether or how this unique statutory provision might affect our review. They did not discuss whether Duke was required to explain a legal conclusion that was not hers to make. Nor did they discuss whether the current suits challenging Duke’s rescission decision, which everyone agrees was within her legal authority under the INA, are proper vehicles for attacking the Attorney General’s legal conclusion. Because of these gaps in respondents’ briefing, we do not evaluate the claims challenging the explanation and correctness of the illegality conclusion. Instead we focus our attention on respondents’ third argument—that Acting Secretary Duke \"failed to consider . . . important aspect[s] of the problem\" before her. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983). Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General. But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS. Acting Secretary Duke plainly exercised such discretionary authority in winding down the program. See App. to Pet. for Cert. 117a–118a (listing the Acting Secretary’s decisions on eight transition issues). Among other things, she specified that those DACA recipients whose benefits were set to expire within six months were eligible for two-year renewals. Ibid. But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off. The Attorney General concluded that \"the DACA policy has the same legal . . . defects that the courts recognized as to DAPA.\" App. 878. So, to understand those defects, we look to the Fifth Circuit, the highest court to offer a reasoned opinion on the legality of DAPA. That court described the \"core\" issue before it as the \"Secretary’s decision\" to grant \"eligibility for benefits\"— including work authorization, Social Security, and Medicare—to unauthorized aliens on \"a class-wide basis.\" Texas, 809 F. 3d, at 170; see id., at 148, 184. The Fifth Circuit’s focus on these benefits was central to every stage of its analysis. See id., at 155 (standing); id., at 163 (zone of interest); id., at 164 (applicability of §1252(g)); id., at 166 (reviewability); id., at 176–177 (notice and comment); id., at 184 (substantive APA). And the Court ultimately held that DAPA was \"manifestly contrary to the INA\" precisely because it \"would make 4.3 million otherwise removable aliens\" eligible for work authorization and public benefits. Id., at 181–182 (internal quotation marks omitted). But there is more to DAPA (and DACA) than such benefits. The defining feature of deferred action is the decision to defer removal (and to notify the affected alien of that decision). See App. to Pet. for Cert. 99a. And the Fifth Circuit was careful to distinguish that forbearance component from eligibility for benefits. As it explained, the \"challenged portion of DAPA’s deferred-action program\" was the decision to make DAPA recipients eligible for benefits. See Texas, 809 F. 3d, at 168, and n. 108. The other \"[p]art of DAPA,\" the court noted, \"involve[d] the Secretary’s decision—at least temporarily—not to enforce the immigration laws as to a class of what he deem[ed] to be low-priority illegal aliens.\" Id., at 166. Borrowing from this Court’s prior description of deferred action, the Fifth Circuit observed that \"the states do not challenge the Secretary’s decision to ‘decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation.’\" Id., at 168 (quoting Reno, 525 U. S., at 484). And the Fifth Circuit underscored that nothing in its decision or the preliminary injunction \"requires the Secretary to remove any alien or to alter\" the Secretary’s class-based \"enforcement priorities.\" Texas, 809 F. 3d, at 166, 169. In other words, the Secretary’s forbearance authority was unimpaired. Acting Secretary Duke recognized that the Fifth Circuit’s holding addressed the benefits associated with DAPA. In her memorandum she explained that the Fifth Circuit concluded that DAPA \"conflicted with the discretion authorized by Congress\" because the INA \"‘flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.’\" App. to Pet. for Cert. 114a (quoting Texas, 809 F. 3d, at 184). Duke did not characterize the opinion as one about forbearance. In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for \"[e]stablishing national immigration enforcement policies and priorities.\" 116 Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error we identified in one of our leading modern administrative law cases, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. There, the National Highway Traffic Safety Administration (NHTSA) promulgated a requirement that motor vehicles produced after 1982 be equipped with one of two passive restraints: airbags or automatic seatbelts. 463 U. S., at 37–38, 46. Four years later, before the requirement went into effect, NHTSA concluded that automatic seatbelts, the restraint of choice for most manufacturers, would not provide effective protection. Based on that premise, NHTSA rescinded the passive restraint requirement in full. Id., at 38. We concluded that the total rescission was arbitrary and capricious. As we explained, NHTSA’s justification supported only \"disallow[ing] compliance by means of \" automatic seatbelts. Id., at 47. It did \"not cast doubt\" on the \"efficacy of airbag technology\" or upon \"the need for a passive restraint standard.\" Ibid. Given NHTSA’s prior judgment that \"airbags are an effective and cost-beneficial lifesaving technology,\" we held that \"the mandatory passive restraint rule [could] not be abandoned without any consideration whatsoever of an airbags-only requirement.\" Id., at 51. While the factual setting is different here, the error is the same. Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only \"disallow[ing]\" benefits. Id., at 47. It did \"not cast doubt\" on the legality of forbearance or upon DHS’s original reasons for extending forbearance to childhood arrivals. Ibid. Thus, given DHS’s earlier judgment that forbearance is \"especially justified\" for \"productive young people\" who were brought here as children and \"know only this country as home,\" App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be rescinded in full \"without any consideration whatsoever\" of a forbearance-only policy, State Farm, 463 U. S., at 51.6 The Government acknowledges that \"[d]eferred action coupled with the associated benefits are the two legs upon which the DACA policy stands.\" Reply Brief 21. It insists, however, that \"DHS was not required to consider whether DACA’s illegality could be addressed by separating\" the two. Ibid. According to the Government, \"It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.\" Ibid. Perhaps. But that response misses the point. The fact that there may be a valid reason not to separate deferred action from benefits does not establish that DHS considered that option or that such consideration was unnecessary. The lead dissent acknowledges that forbearance and benefits are legally distinct and can be decoupled. Post, at 21– 22, n. 14 (opinion of THOMAS, J). It contends, however, that we should not \"dissect\" agency action \"piece by piece.\" Post, at 21. The dissent instead rests on the Attorney General’s legal determination—which considered only benefits—\"to supply the ‘reasoned analysis’\" to support rescission of both benefits and forbearance. Post, at 22 (quoting State Farm, 463 U. S., at 42). But State Farm teaches that when an agency rescinds a prior policy its reasoned analysis must consider the \"alternative[s]\" that are \"within the ambit of the existing [policy].\" Id., at 51. Here forbearance was not simply \"within the ambit of the existing [policy],\" it was the centerpiece of the policy: DACA, after all, stands for \"Deferred Action for Childhood Arrivals.\" App. to Pet. for Cert. 111a (emphasis added). But the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits. Duke \"entirely failed to consider [that] important aspect of the problem.\" State Farm, 463 U. S., at 43. That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was \"legitimate reliance\" on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996). When an agency changes course, as DHS did here, it must \"be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’\" Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___ (2016) (slip op., at 9) (quoting Fox Television, 556 U. S., at 515). \"It would be arbitrary and capricious to ignore such matters.\" Id., at 515. Yet that is what the Duke Memorandum did. For its part, the Government does not contend that Duke considered potential reliance interests; it counters that she did not need to. In the Government’s view, shared by the lead dissent, DACA recipients have no \"legally cognizable reliance interests\" because the DACA Memorandum stated that the program \"conferred no substantive rights\" and provided benefits only in two-year increments. Reply Brief 16– 17; App. to Pet. for Cert. 125a. See also post, at 23–24 (opinion of THOMAS, J). But neither the Government nor the lead dissent cites any legal authority establishing that such features automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that consideration must be undertaken by the agency in the first instance, subject to normal APA review. There was no such consideration in the Duke Memorandum. Respondents and their amici assert that there was much for DHS to consider. They stress that, since 2012, DACA recipients have \"enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance\" on the DACA program. Brief for Respondent Regents of Univ. of California et al. in No. 18–587, p. 41 (Brief for Regents). The consequences of the rescission, respondents emphasize, would \"radiate outward\" to DACA recipients’ families, including their 200,000 U. S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. See id., at 41–42; Brief for Respondent State of New York et al. in No. 18–589, p. 42 (Brief for New York). See also Brief for 143 Businesses as Amici Curiae 17 (estimating that hiring and training replacements would cost employers $6.3 billion). In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Brief for Regents 6. Meanwhile, States and local governments could lose $1.25 billion in tax revenue each year. Ibid. These are certainly noteworthy concerns, but they are not necessarily dispositive. To the Government and lead dissent’s point, DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum. Or it might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight. And, even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it. DHS has considerable flexibility in carrying out its responsibility. The wind-down here is a good example of the kind of options available. Acting Secretary Duke authorized DHS to process two-year renewals for those DACA recipients whose benefits were set to expire within six months. But Duke’s consideration was solely for the purpose of assisting the agency in dealing with \"administrative complexities.\" App. to Pet. for Cert. 116a–118a. She should have considered whether she had similar flexibility in addressing any reliance interests of DACA recipients. The lead dissent contends that accommodating such interests would be \"another exercise of unlawful power,\" post, at 23 (opinion of THOMAS, J.), but the Government does not make that argument and DHS has already extended benefits for purposes other than reliance, following consultation with the Office of the Attorney General. App. to Pet. for Cert. 116a. Had Duke considered reliance interests, she might, for example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion. To be clear, DHS was not required to do any of this or to \"consider all policy alternatives in reaching [its] decision.\" State Farm, 463 U. S., at 51. Agencies are not compelled to explore \"every alternative device and thought conceivable by the mind of man.\" Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 551 (1978). But, because DHS was \"not writing on a blank slate,\" post, at 22, n. 14 (opinion of THOMAS, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns. The lead dissent sees all the foregoing differently. In its view, DACA is illegal, so any actions under DACA are themselves illegal. Such actions, it argues, must cease immediately and the APA should not be construed to impede that result. See post, at 19–23 (opinion of THOMAS, J.). The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination. See ante, at 20. But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA. IV Lastly, we turn to respondents’ claim that the rescission violates the equal protection guarantee of the Fifth Amendment. The parties dispute the proper framing of this claim. The Government contends that the allegation that the Executive, motivated by animus, ended a program that disproportionately benefits certain ethnic groups is a selective enforcement claim. Such a claim, the Government asserts, is barred by our decision in Reno v. American-Arab AntiDiscrimination Committee. See 525 U. S., at 488 (holding that \"an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation\"). Respondents counter that their claim falls outside the scope of that precedent because they are not challenging individual enforcement proceedings. We need not resolve this debate because, even if the claim is cognizable, the allegations here are insufficient. To plead animus, a plaintiff must raise a plausible inference that an \"invidious discriminatory purpose was a motivating factor\" in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, \"[d]epartures from the normal procedural sequence,\" and \"contemporary statements by members of the decisionmaking body.\" Id., at 266–268. Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55. None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. See B. Baker, DHS, Office of Immigration Statistics, Population Estimates, Illegal Alien Population Residing in the United States: January 2015, Table 2 (Dec. 2018), https://www.dhs.gov/sites/default/files/publications/ 18_1214_PLCY_pops-est-report.pdf. Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds. Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that \"DACA received reaffirmation by [DHS] as recently as three months before the rescission,\" 908 F. 3d, at 519 (quoting 298 F. Supp. 3d, at 1315), referring to the June 2017 DAPA rescission memo, which stated that DACA would \"remain in effect,\" App. 870. But this reasoning confuses abstention with reaffirmation. The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a \"strange about-face.\" 908 F. 3d, at 519. It was a natural response to a newly identified problem. Finally, the cited statements are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not \"identif[y] statements by [either] that would give rise to an inference of discriminatory motive.\" 291 F. Supp. 3d, at 278. Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts— do not qualify as \"contemporary statements\" probative of the decision at issue. Arlington Heights, 429 U. S., at 268. Thus, like respondents’ other points, the statements fail to raise a plausible inference that the rescission was motivated by animus. We do not decide whether DACA or its rescission are sound policies. \"The wisdom\" of those decisions \"is none of our concern.\" Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew. The judgment in NAACP, No. 18–588, is affirmed.7 The judgment in Regents, No. 18–587, is vacated in part and reversed in part. And in Batalla Vidal, No. 18–589, the February 13, 2018 order granting respondents’ motion for a preliminary injunction is vacated, the November 9, 2017 order partially denying the Government’s motion to dismiss is affirmed in part, and the March 29, 2018 order partially denying the balance of the Government’s motion to dismiss is reversed in part. All three cases are remanded for further proceedings consistent with this opinion."},
{"docket_number": "17-1618", "syllabus": "In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct \"unbecoming\" a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to \"live and work full-time as a woman.\" Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed. Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4–33. (a) Title VII makes it \"unlawful . . . for an employer 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.\" 42 U. S. C. §2000e–2(a)(1). The straightforward application of Title VII’s terms interpreted in accord with their ordinary public meaning at the time of their enactment resolves these cases. Pp. 4–12. (1) The parties concede that the term \"sex\" in 1964 referred to the biological distinctions between male and female. And \"the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ \" University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action. The term \"discriminate\" meant \"[t]o make a difference in treatment or favor (of one as compared with others).\" Webster’s New International Dictionary 745. In so-called \"disparate treatment\" cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term \"individual\" means that the focus is on \"[a] particular being as distinguished from a class.\" Webster’s New International Dictionary, at 1267. Pp. 4–9. (2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Pp. 9–12. (b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups. And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex. The lessons these cases hold are instructive here. First, it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer might have called its rule a \"life expectancy\" adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on \"motherhood.\" But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. Pp. 12–15. (c) The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is. Pp. 15–33. (1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. Nor is it a defense to insist that intentional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. Pp. 16–23. (2) The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. Pp. 23–33. No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.", "opinion": "Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit. I Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status. Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work. After a decade with the county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct \"unbecoming\" a county employee. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired. Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to \"live and work full-time as a woman\" after she returned from an upcoming vacation. The funeral home fired her before she left, telling her \"this is not going to work out.\" While these cases began the same way, they ended differently. Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. 78 Stat. 255, 42 U. S. C. §2000e–2(a)(1). In Mr. Bostock’s case, the Eleventh Circuit held that the law does not prohibit employers from firing employees for being gay and so his suit could be dismissed as a matter of law. 723 Fed. Appx. 964 (2018). Meanwhile, in Mr. Zarda’s case, the Second Circuit concluded that sexual orientation discrimination does violate Title VII and allowed his case to proceed. 883 F. 3d 100 (2018). Ms. Stephens’s case has a more complex procedural history, but in the end the Sixth Circuit reached a decision along the same lines as the Second Circuit’s, holding that Title VII bars employers from firing employees because of their transgender status. 884 F. 3d 560 (2018). During the course of the proceedings in these long-running disputes, both Mr. Zarda and Ms. Stephens have passed away. But their estates continue to press their causes for the benefit of their heirs. And we granted certiorari in these matters to resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons. 587 U. S. ___ (2019). II This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations. See New Prime Inc. v. Oliveira, 586 U. S. ___, ___–___ (2019) (slip op., at 6–7). With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is \"unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.\" §2000e–2(a)(1). To do so, we orient ourselves to the time of the statute’s adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court’s precedents. A The only statutorily protected characteristic at issue in today’s cases is \"sex\"—and that is also the primary term in Title VII whose meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term \"sex\" in 1964 referred to \"status as either male or female [as] determined by reproductive biology.\" The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that \"sex\" signified what the employers suggest, referring only to biological distinctions between male and female. Still, that’s just a starting point. The question isn’t just what \"sex\" meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions \"because of \" sex. And, as this Court has previously explained, \"the ordinary meaning of ‘because of ’ is ‘by reason of ’ or ‘on account of.’\" University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350 (2013) (citing Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176 (2009); quotation altered). In the language of law, this means that Title VII’s \"because of \" test incorporates the \"‘simple’\" and \"traditional\" standard of but-for causation. Nassar, 570 U. S., at 346, 360. That form of causation is established whenever a particular outcome would not have happened \"but for\" the purported cause. See Gross, 557 U. S., at 176. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. Cf. Burrage v. United States, 571 U. S. 204, 211–212 (2014). When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law. See ibid.; Nassar, 570 U. S., at 350. No doubt, Congress could have taken a more parsimonious approach. As it has in other statutes, it could have added \"solely\" to indicate that actions taken \"because of \" the confluence of multiple factors do not violate the law. Cf. 11 U. S. C. §525; 16 U. S. C. §511. Or it could have written \"primarily because of \" to indicate that the prohibited factor had to be the main cause of the defendant’s challenged employment decision. Cf. 22 U. S. C. §2688. But none of this is the law we have. If anything, Congress has moved in the opposite direction, supplementing Title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait like sex was a \"motivating factor\" in a defendant’s challenged employment practice. Civil Rights Act of 1991, §107, 105 Stat. 1075, codified at 42 U. S. C. §2000e–2(m). Under this more forgiving standard, liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision. Still, because nothing in our analysis depends on the motivating factor test, we focus on the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief under Title VII. §2000e–2(a)(1). As sweeping as even the but-for causation standard can be, Title VII does not concern itself with everything that happens \"because of \" sex. The statute imposes liability on employers only when they \"fail or refuse to hire,\" \"discharge,\" \"or otherwise . . . discriminate against\" someone because of a statutorily protected characteristic like sex. Ibid. The employers acknowledge that they discharged the plaintiffs in today’s cases, but assert that the statute’s list of verbs is qualified by the last item on it: \"otherwise . . . discriminate against.\" By virtue of the word otherwise, the employers suggest, Title VII concerns itself not with every discharge, only with those discharges that involve discrimination. Accepting this point, too, for argument’s sake, the question becomes: What did \"discriminate\" mean in 1964? As it turns out, it meant then roughly what it means today: \"To make a difference in treatment or favor (of one as compared with others).\" Webster’s New International Dictionary 745 (2d ed. 1954). To \"discriminate against\" a person, then, would seem to mean treating that individual worse than others who are similarly situated. See Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 59 (2006). In so-called \"disparate treatment\" cases like today’s, this Court has also held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986 (1988). So, taken together, an employer who intentionally treats a person worse because of sex— such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII. At first glance, another interpretation might seem possible. Discrimination sometimes involves \"the act, practice, or an instance of discriminating categorically rather than individually.\" Webster’s New Collegiate Dictionary 326 (1975); see also post, at 27–28, n. 22 (ALITO, J., dissenting). On that understanding, the statute would require us to consider the employer’s treatment of groups rather than individuals, to see how a policy affects one sex as a whole versus the other as a whole. That idea holds some intuitive appeal too. Maybe the law concerns itself simply with ensuring that employers don’t treat women generally less favorably than they do men. So how can we tell which sense, individual or group, \"discriminate\" carries in Title VII? The statute answers that question directly. It tells us three times—including immediately after the words \"discriminate against\"—that our focus should be on individuals, not groups: Employers may not \"fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.\" §2000e–2(a)(1) (emphasis added). And the meaning of \"individual\" was as uncontroversial in 1964 as it is today: \"A particular being as distinguished from a class, species, or collection.\" Webster’s New International Dictionary, at 1267. Here, again, Congress could have written the law differently. It might have said that \"it shall be an unlawful employment practice to prefer one sex to the other in hiring, firing, or the terms or conditions of employment.\" It might have said that there should be no \"sex discrimination,\" perhaps implying a focus on differential treatment between the two sexes as groups. More narrowly still, it could have forbidden only \"sexist policies\" against women as a class. But, once again, that is not the law we have. The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it. B From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is \"simple but momentous\": An individual employee’s sex is \"not relevant to the selection, evaluation, or compensation of employees.\" Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion). The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision. That distinguishes these cases from countless others where Title VII has nothing to say. Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent. But unlike any of these other traits or actions, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing \"because of sex\" if the employer would have tolerated the same allegiance in a male employee. Likewise here. When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach. Reframing the additional causes in today’s cases as additional intentions can do no more to insulate the employers from liability. Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees. There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex. An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender. Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII. So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same. At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that \"should be the end of the analysis.\" 883 F. 3d, at 135 (Cabranes, J., concurring in judgment). C If more support for our conclusion were required, there’s no need to look far. All that the statute’s plain terms suggest, this Court’s cases have already confirmed. Consider three of our leading precedents. In Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), a company allegedly refused to hire women with young children, but did hire men with children the same age. Because its discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children—the company contended it hadn’t engaged in discrimination \"because of \" sex. The company maintained, too, that it hadn’t violated the law because, as a whole, it tended to favor hiring women over men. Unsurprisingly by now, these submissions did not sway the Court. That an employer discriminates intentionally against an individual only in part because of sex supplies no defense to Title VII. Nor does the fact an employer may happen to favor women as a class. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978), an employer required women to make larger pension fund contributions than men. The employer sought to justify its disparate treatment on the ground that women tend to live longer than men, and thus are likely to receive more from the pension fund over time. By everyone’s admission, the employer was not guilty of animosity against women or a \"purely habitual assumptio[n] about a woman’s inability to perform certain kinds of work\"; instead, it relied on what appeared to be a statistically accurate statement about life expectancy. Id., at 707–708. Even so, the Court recognized, a rule that appears evenhanded at the group level can prove discriminatory at the level of individuals. True, women as a class may live longer than men as a class. But \"[t]he statute’s focus on the individual is unambiguous,\" and any individual woman might make the larger pension contributions and still die as early as a man. Id., at 708. Likewise, the Court dismissed as irrelevant the employer’s insistence that its actions were motivated by a wish to achieve classwide equality between the sexes: An employer’s intentional discrimination on the basis of sex is no more permissible when it is prompted by some further intention (or motivation), even one as prosaic as seeking to account for actuarial tables. Ibid. The employer violated Title VII because, when its policy worked exactly as planned, it could not \"pass the simple test\" asking whether an individual female employee would have been treated the same regardless of her sex. Id., at 711. In Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998), a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment. The Court held it was immaterial that members of the same sex as the victim committed the alleged discrimination. Nor did the Court concern itself with whether men as a group were subject to discrimination or whether something in addition to sex contributed to the discrimination, like the plaintiff ’s conduct or personal attributes. \"[A]ssuredly,\" the case didn’t involve \"the principal evil Congress was concerned with when it enacted Title VII.\" Id., at 79. But, the Court unanimously explained, it is \"the provisions of our laws rather than the principal concerns of our legislators by which we are governed.\" Ibid. Because the plaintiff alleged that the harassment would not have taken place but for his sex—that is, the plaintiff would not have suffered similar treatment if he were female—a triable Title VII claim existed. The lessons these cases hold for ours are by now familiar. First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer called its rule requiring women to pay more into the pension fund a \"life expectancy\" adjustment necessary to achieve sex equality. In Phillips, the employer could have accurately spoken of its policy as one based on \"motherhood.\" In much the same way, today’s employers might describe their actions as motivated by their employees’ homosexuality or transgender status. But just as labels and additional intentions or motivations didn’t make a difference in Manhart or Phillips, they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability. Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the defendant easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. So, too, it has no significance here if another factor—such as the sex the plaintiff is attracted to or presents as—might also be at work, or even play a more important role in the employer’s decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. As Manhart teaches, an employer is liable for intentionally requiring an individual female employee to pay more into a pension plan than a male counterpart even if the scheme promotes equality at the group level. Likewise, an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. III What do the employers have to say in reply? For present purposes, they do not dispute that they fired the plaintiffs for being homosexual or transgender. Sorting out the true reasons for an adverse employment decision is often a hard business, but none of that is at issue here. Rather, the employers submit that even intentional discrimination against employees based on their homosexuality or transgender status supplies no basis for liability under Title VII. The employers’ argument proceeds in two stages. Seeking footing in the statutory text, they begin by advancing a number of reasons why discrimination on the basis of homosexuality or transgender status doesn’t involve discrimination because of sex. But each of these arguments turns out only to repackage errors we’ve already seen and this Court’s precedents have already rejected. In the end, the employers are left to retreat beyond the statute’s text, where they fault us for ignoring the legislature’s purposes in enacting Title VII or certain expectations about its operation. They warn, too, about consequences that might follow a ruling for the employees. But none of these contentions about what the employers think the law was meant to do, or should do, allow us to ignore the law as it is. A Maybe most intuitively, the employers assert that discrimination on the basis of homosexuality and transgender status aren’t referred to as sex discrimination in ordinary conversation. If asked by a friend (rather than a judge) why they were fired, even today’s plaintiffs would likely respond that it was because they were gay or transgender, not because of sex. According to the employers, that conversational answer, not the statute’s strict terms, should guide our thinking and suffice to defeat any suggestion that the employees now before us were fired because of sex. Cf. post, at 3 (ALITO, J., dissenting); post, at 8–13 (KAVANAUGH, J., dissenting). But this submission rests on a mistaken understanding of what kind of cause the law is looking for in a Title VII case. In conversation, a speaker is likely to focus on what seems most relevant or informative to the listener. So an employee who has just been fired is likely to identify the primary or most direct cause rather than list literally every but-for cause. To do otherwise would be tiring at best. But these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was a but-for cause. In Phillips, for example, a woman who was not hired under the employer’s policy might have told her friends that her application was rejected because she was a mother, or because she had young children. Given that many women could be hired under the policy, it’s unlikely she would say she was not hired because she was a woman. But the Court did not hesitate to recognize that the employer in Phillips discriminated against the plaintiff because of her sex. Sex wasn’t the only factor, or maybe even the main factor, but it was one but-for cause—and that was enough. You can call the statute’s but-for causation test what you will—expansive, legalistic, the dissents even dismiss it as wooden or literal. But it is the law. Trying another angle, the defendants before us suggest that an employer who discriminates based on homosexuality or transgender status doesn’t intentionally discriminate based on sex, as a disparate treatment claim requires. See post, at 9–12 (ALITO, J., dissenting); post, at 12–13 (KAVANAUGH, J., dissenting). But, as we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women. What, then, do the employers mean when they insist intentional discrimination based on homosexuality or transgender status isn’t intentional discrimination based on sex? Maybe the employers mean they don’t intend to harm one sex or the other as a class. But as should be clear by now, the statute focuses on discrimination against individuals, not groups. Alternatively, the employers may mean that they don’t perceive themselves as motivated by a desire to discriminate based on sex. But nothing in Title VII turns on the employer’s labels or any further intentions (or motivations) for its conduct beyond sex discrimination. In Manhart, the employer intentionally required women to make higher pension contributions only to fulfill the further purpose of making things more equitable between men and women as groups. In Phillips, the employer may have perceived itself as discriminating based on motherhood, not sex, given that its hiring policies as a whole favored women. But in both cases, the Court set all this aside as irrelevant. The employers’ policies involved intentional discrimination because of sex, and Title VII liability necessarily followed. Aren’t these cases different, the employers ask, given that an employer could refuse to hire a gay or transgender individual without ever learning the applicant’s sex? Suppose an employer asked homosexual or transgender applicants to tick a box on its application form. The employer then had someone else redact any information that could be used to discern sex. The resulting applications would disclose which individuals are homosexual or transgender without revealing whether they also happen to be men or women. Doesn’t that possibility indicate that the employer’s discrimination against homosexual or transgender persons cannot be sex discrimination? No, it doesn’t. Even in this example, the individual applicant’s sex still weighs as a factor in the employer’s decision. Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants. The same holds here. There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done. Likewise, there is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant’s sex. By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex. Next, the employers turn to Title VII’s list of protected characteristics—race, color, religion, sex, and national origin. Because homosexuality and transgender status can’t be found on that list and because they are conceptually distinct from sex, the employers reason, they are implicitly excluded from Title VII’s reach. Put another way, if Congress had wanted to address these matters in Title VII, it would have referenced them specifically. Cf. post, at 7–8 (ALITO, J., dissenting); post, at 13–15 (KAVANAUGH, J., dissenting). But that much does not follow. We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a \"canon of donut holes,\" in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. \"Sexual harassment\" is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Oncale, 523 U. S., at 79–80. Same with \"motherhood discrimination.\" See Phillips, 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them. The employers try the same point another way. Since 1964, they observe, Congress has considered several proposals to add sexual orientation to Title VII’s list of protected characteristics, but no such amendment has become law. Meanwhile, Congress has enacted other statutes addressing other topics that do discuss sexual orientation. This postenactment legislative history, they urge, should tell us something. Cf. post, at 2, 42–43 (ALITO, J., dissenting); post, at 4, 15–16 (KAVANAUGH, J., dissenting). But what? There’s no authoritative evidence explaining why later Congresses adopted other laws referencing sexual orientation but didn’t amend this one. Maybe some in the later legislatures understood the impact Title VII’s broad language already promised for cases like ours and didn’t think a revision needed. Maybe others knew about its impact but hoped no one else would notice. Maybe still others, occupied by other concerns, didn’t consider the issue at all. All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a \"particularly dangerous\" basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt. Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990); see also United States v. Wells, 519 U. S. 482, 496 (1997); Sullivan v. Finkelstein, 496 U. S. 617, 632 (1990) (Scalia, J., concurring) (\"Arguments based on subsequent legislative history . . . should not be taken seriously, not even in a footnote\"). That leaves the employers to seek a different sort of exception. Maybe the traditional and simple but-for causation test should apply in all other Title VII cases, but it just doesn’t work when it comes to cases involving homosexual and transgender employees. The test is too blunt to capture the nuances here. The employers illustrate their concern with an example. When we apply the simple test to Mr. Bostock—asking whether Mr. Bostock, a man attracted to other men, would have been fired had he been a woman— we don’t just change his sex. Along the way, we change his sexual orientation too (from homosexual to heterosexual). If the aim is to isolate whether a plaintiff ’s sex caused the dismissal, the employers stress, we must hold sexual orientation constant—meaning we need to change both his sex and the sex to which he is attracted. So for Mr. Bostock, the question should be whether he would’ve been fired if he were a woman attracted to women. And because his employer would have been as quick to fire a lesbian as it was a gay man, the employers conclude, no Title VII violation has occurred. While the explanation is new, the mistakes are the same. The employers might be onto something if Title VII only ensured equal treatment between groups of men and women or if the statute applied only when sex is the sole or primary reason for an employer’s challenged adverse employment action. But both of these premises are mistaken. Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups; an employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability. Just cast a glance back to Manhart, where it was no defense that the employer sought to equalize pension contributions based on life expectancy. Nor does the statute care if other factors besides sex contribute to an employer’s discharge decision. Mr. Bostock’s employer might have decided to fire him only because of the confluence of two factors, his sex and the sex to which he is attracted. But exactly the same might have been said in Phillips, where motherhood was the added variable. Still, the employers insist, something seems different here. Unlike certain other employment policies this Court has addressed that harmed only women or only men, the employers’ policies in the cases before us have the same adverse consequences for men and women. How could sex be necessary to the result if a member of the opposite sex might face the same outcome from the same policy? What the employers see as unique isn’t even unusual. Often in life and law two but-for factors combine to yield a result that could have also occurred in some other way. Imagine that it’s a nice day outside and your house is too warm, so you decide to open the window. Both the cool temperature outside and the heat inside are but-for causes of your choice to open the window. That doesn’t change just because you also would have opened the window had it been warm outside and cold inside. In either case, no one would deny that the window is open \"because of \" the outside temperature. Our cases are much the same. So, for example, when it comes to homosexual employees, male sex and attraction to men are but-for factors that can combine to get them fired. The fact that female sex and attraction to women can also get an employee fired does no more than show the same outcome can be achieved through the combination of different factors. In either case, though, sex plays an essential but-for role. At bottom, the employers’ argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow. And, as we’ve seen, that suggestion is at odds with everything we know about the statute. Consider an employer eager to revive the workplace gender roles of the 1950s. He enforces a policy that he will hire only men as mechanics and only women as secretaries. When a qualified woman applies for a mechanic position and is denied, the \"simple test\" immediately spots the discrimination: A qualified man would have been given the job, so sex was a but-for cause of the employer’s refusal to hire. But like the employers before us today, this employer would say not so fast. By comparing the woman who applied to be a mechanic to a man who applied to be a mechanic, we’ve quietly changed two things: the applicant’s sex and her trait of failing to conform to 1950s gender roles. The \"simple test\" thus overlooks that it is really the applicant’s bucking of 1950s gender roles, not her sex, doing the work. So we need to hold that second trait constant: Instead of comparing the disappointed female applicant to a man who applied for the same position, the employer would say, we should compare her to a man who applied to be a secretary. And because that jobseeker would be refused too, this must not be sex discrimination. No one thinks that, so the employers must scramble to justify deploying a stricter causation test for use only in cases involving discrimination based on sexual orientation or transgender status. Such a rule would create a curious discontinuity in our case law, to put it mildly. Employer hires based on sexual stereotypes? Simple test. Employer sets pension contributions based on sex? Simple test. Employer fires men who do not behave in a sufficiently masculine way around the office? Simple test. But when that same employer discriminates against women who are attracted to women, or persons identified at birth as women who later identify as men, we suddenly roll out a new and more rigorous standard? Why are these reasons for taking sex into account different from all the rest? Title VII’s text can offer no answer. B Ultimately, the employers are forced to abandon the statutory text and precedent altogether and appeal to assumptions and policy. Most pointedly, they contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. And whatever the text and our precedent indicate, they say, shouldn’t this fact cause us to pause before recognizing liability? It might be tempting to reject this argument out of hand. This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration. See, e.g., Carcieri v. Salazar, 555 U. S. 379, 387 (2009); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992); Rubin v. United States, 449 U. S. 424, 430 (1981). Of course, some Members of this Court have consulted legislative history when interpreting ambiguous statutory language. Cf. post, at 40 (ALITO, J., dissenting). But that has no bearing here. \"Legislative history, for those who take it into account, is meant to clear up ambiguity, not create it.\" Milner v. Department of Navy, 562 U. S. 562, 574 (2011). And as we have seen, no ambiguity exists about how Title VII’s terms apply to the facts before us. To be sure, the statute’s application in these cases reaches \"beyond the principal evil\" legislators may have intended or expected to address. Oncale, 523 U. S., at 79. But \"‘the fact that [a statute] has been applied in situations not expressly anticipated by Congress’\" does not demonstrate ambiguity; instead, it simply \"‘demonstrates [the] breadth’\" of a legislative command. Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985). And \"it is ultimately the provisions of \" those legislative commands \"rather than the principal concerns of our legislators by which we are governed.\" Oncale, 523 U. S., at 79; see also A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 101 (2012) (noting that unexpected applications of broad language reflect only Congress’s \"presumed point [to] produce general coverage— not to leave room for courts to recognize ad hoc exceptions\"). Still, while legislative history can never defeat unambiguous statutory text, historical sources can be useful for a different purpose: Because the law’s ordinary meaning at the time of enactment usually governs, we must be sensitive to the possibility a statutory term that means one today or in one context might have meant something else at the time of its adoption or might mean something different in another context. And we must be attuned to the possibility that a statutory phrase ordinarily bears a different meaning than the terms do when viewed individually or literally. To ferret out such shifts in linguistic usage or subtle distinctions between literal and ordinary meaning, this Court has sometimes consulted the understandings of the law’s drafters as some (not always conclusive) evidence. For example, in the context of the National Motor Vehicle Theft Act, this Court admitted that the term \"vehicle\" in 1931 could literally mean \"a conveyance working on land, water or air.\" McBoyle v. United States, 283 U. S. 25, 26 (1931). But given contextual clues and \"everyday speech\" at the time of the Act’s adoption in 1919, this Court concluded that \"vehicles\" in that statute included only things \"moving on land,\" not airplanes too. Ibid. Similarly, in New Prime, we held that, while the term \"contracts of employment\" today might seem to encompass only contracts with employees, at the time of the statute’s adoption the phrase was ordinarily understood to cover contracts with independent contractors as well. 586 U. S., at ___–___ (slip op., at 6–9). Cf. post, at 7–8 (KAVANAUGH, J., dissenting) (providing additional examples). The employers, however, advocate nothing like that here. They do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms, whether viewed individually or as a whole, ordinarily carried some message we have missed. To the contrary, as we have seen, the employers agree with our understanding of all the statutory language—\"discriminate against any individual . . . because of such individual’s . . . sex.\" Nor do the competing dissents offer an alternative account about what these terms mean either when viewed individually or in the aggregate. Rather than suggesting that the statutory language bears some other meaning, the employers and dissents merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text. When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime. That is exactly the sort of reasoning this Court has long rejected. Admittedly, the employers take pains to couch their argument in terms of seeking to honor the statute’s \"expected applications\" rather than vindicate its \"legislative intent.\" But the concepts are closely related. One could easily contend that legislators only intended expected applications or that a statute’s purpose is limited to achieving applications foreseen at the time of enactment. However framed, the employer’s logic impermissibly seeks to displace the plain meaning of the law in favor of something lying beyond it. If anything, the employers’ new framing may only add new problems. The employers assert that \"no one\" in 1964 or for some time after would have anticipated today’s result. But is that really true? Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application. See, e.g., Smith v. Liberty Mut. Ins. Co., 395 F. Supp. 1098, 1099 (ND Ga. 1975) (addressing claim from 1969); Holloway v. Arthur Andersen & Co., 566 F. 2d 659, 661 (CA9 1977) (addressing claim from 1974). And less than a decade after Title VII’s passage, during debates over the Equal Rights Amendment, others counseled that its language—which was strikingly similar to Title VII’s— might also protect homosexuals from discrimination. See, e.g., Note, The Legality of Homosexual Marriage, 82 Yale L. J. 573, 583–584 (1973). Why isn’t that enough to demonstrate that today’s result isn’t totally unexpected? How many people have to foresee the application for it to qualify as \"expected\"? Do we look only at the moment the statute was enacted, or do we allow some time for the implications of a new statute to be worked out? Should we consider the expectations of those who had no reason to give a particular application any thought or only those with reason to think about the question? How do we account for those who change their minds over time, after learning new facts or hearing a new argument? How specifically or generally should we frame the \"application\" at issue? None of these questions have obvious answers, and the employers don’t propose any. One could also reasonably fear that objections about unexpected applications will not be deployed neutrally. Often lurking just behind such objections resides a cynicism that Congress could not possibly have meant to protect a disfavored group. Take this Court’s encounter with the Americans with Disabilities Act’s directive that no \"‘public entity’\" can discriminate against any \"‘qualified individual with a disability.’\" Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 208 (1998). Congress, of course, didn’t list every public entity the statute would apply to. And no one batted an eye at its application to, say, post offices. But when the statute was applied to prisons, curiously, some demanded a closer look: Pennsylvania argued that \"Congress did not ‘envisio[n] that the ADA would be applied to state prisoners.’\" Id., at 211–212. This Court emphatically rejected that view, explaining that, \"in the context of an unambiguous statutory text,\" whether a specific application was anticipated by Congress \"is irrelevant.\" Id., at 212. As Yeskey and today’s cases exemplify, applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees in the 1960s—often may be seen as unexpected. But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms. Cf. post, at 28–35 (ALITO, J., dissenting); post, at 21–22 (KAVANAUGH, J., dissenting). The employer’s position also proves too much. If we applied Title VII’s plain text only to applications some (yet-tobe-determined) group expected in 1964, we’d have more than a little law to overturn. Start with Oncale. How many people in 1964 could have expected that the law would turn out to protect male employees? Let alone to protect them from harassment by other male employees? As we acknowledged at the time, \"male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.\" 523 U. S., at 79. Yet the Court did not hesitate to recognize that Title VII’s plain terms forbade it. Under the employer’s logic, it would seem this was a mistake. That’s just the beginning of the law we would have to unravel. As one Equal Employment Opportunity Commission (EEOC) Commissioner observed shortly after the law’s passage, the words of \"‘the sex provision of Title VII [are] difficult to . . . control.’\" Franklin, Inventing the \"Traditional Concept\" of Sex Discrimination, 125 Harv. L. Rev. 1307, 1338 (2012) (quoting Federal Mediation Service To Play Role in Implementing Title VII, [1965–1968 Transfer Binder] CCH Employment Practices ¶8046, p. 6074). The \"difficult[y]\" may owe something to the initial proponent of the sex discrimination rule in Title VII, Representative Howard Smith. On some accounts, the congressman may have wanted (or at least was indifferent to the possibility of) broad language with wide-ranging effect. Not necessarily because he was interested in rooting out sex discrimination in all its forms, but because he may have hoped to scuttle the whole Civil Rights Act and thought that adding language covering sex discrimination would serve as a poison pill. See C. Whalen & B. Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act 115–118 (1985). Certainly nothing in the meager legislative history of this provision suggests it was meant to be read narrowly. Whatever his reasons, thanks to the broad language Representative Smith introduced, many, maybe most, applications of Title VII’s sex provision were \"unanticipated\" at the time of the law’s adoption. In fact, many now-obvious applications met with heated opposition early on, even among those tasked with enforcing the law. In the years immediately following Title VII’s passage, the EEOC officially opined that listing men’s positions and women’s positions separately in job postings was simply helpful rather than discriminatory. Franklin, 125 Harv. L. Rev., at 1340 (citing Press Release, EEOC (Sept. 22, 1965)). Some courts held that Title VII did not prevent an employer from firing an employee for refusing his sexual advances. See, e.g., Barnes v. Train, 1974 WL 10628, *1 (D DC, Aug. 9, 1974). And courts held that a policy against hiring mothers but not fathers of young children wasn’t discrimination because of sex. See Phillips v. Martin Marietta Corp., 411 F. 2d 1 (CA5 1969), rev’d, 400 U. S. 542 (1971) (per curiam). Over time, though, the breadth of the statutory language proved too difficult to deny. By the end of the 1960s, the EEOC reversed its stance on sex-segregated job advertising. See Franklin, 125 Harv. L. Rev., at 1345. In 1971, this Court held that treating women with children differently from men with children violated Title VII. Phillips, 400 U. S., at 544. And by the late 1970s, courts began to recognize that sexual harassment can sometimes amount to sex discrimination. See, e.g., Barnes v. Costle, 561 F. 2d 983 990 (CADC 1977). While to the modern eye each of these examples may seem \"plainly [to] constitut[e] discrimination because of biological sex,\" post, at 38 (ALITO, J., dissenting), all were hotly contested for years following Title VII’s enactment. And as with the discrimination we consider today, many federal judges long accepted interpretations of Title VII that excluded these situations. Cf. post, at 21–22 (KAVANAUGH, J., dissenting) (highlighting that certain lower courts have rejected Title VII claims based on homosexuality and transgender status). Would the employers have us undo every one of these unexpected applications too? The weighty implications of the employers’ argument from expectations also reveal why they cannot hide behind the no-elephants-in-mouseholes canon. That canon recognizes that Congress \"does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.\" Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). But it has no relevance here. We can’t deny that today’s holding—that employers are prohibited from firing employees on the basis of homosexuality or transgender status—is an elephant. But where’s the mousehole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries— virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along. With that, the employers are left to abandon their concern for expected applications and fall back to the last line of defense for all failing statutory interpretation arguments: naked policy appeals. If we were to apply the statute’s plain language, they complain, any number of undesirable policy consequences would follow. Cf. post, at 44–54 (ALITO, J., dissenting). Gone here is any pretense of statutory interpretation; all that’s left is a suggestion we should proceed without the law’s guidance to do as we think best. But that’s an invitation no court should ever take up. The place to make new legislation, or address unwanted consequences of old legislation, lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them. What are these consequences anyway? The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual \"because of such individual’s sex.\" As used in Title VII, the term \"‘discriminate against’\" refers to \"distinctions or differences in treatment that injure protected individuals.\" Burlington N. & S. F. R., 548 U. S., at 59. Firing employees because of a statutorily protected trait surely counts. Whether other policies and might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these. Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws \"to claims concerning the employment relationship between a religious institution and its ministers.\" Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3. But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way. * Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected. But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law. The judgments of the Second and Sixth Circuits in Nos. 17–1623 and 18–107 are affirmed. The judgment of the Eleventh Circuit in No. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "18-1584", "syllabus": "Petitioner Atlantic Coast Pipeline, LLC (Atlantic), sought to construct an approximately 604-mile natural gas pipeline from West Virginia to North Carolina along a route that traversed 16 miles of land within the George Washington National Forest. As relevant here, Atlantic secured a special use permit from the United States Forest Service, obtaining a right-of-way for a 0.1-mile segment of pipe some 600 feet below a portion of the Appalachian National Scenic Trail (Appalachian Trail or Trail), which also crosses the National Forest. Respondents filed a petition for review in the Fourth Circuit, contending, inter alia, that the issuance of the special use permit for the right-of-way under the Trail violated the Mineral Leasing Act (Leasing Act). Atlantic intervened. The Fourth Circuit vacated the permit, holding that the Leasing Act did not empower the Forest Service to grant the right-ofway because the Trail became part of the National Park System when the Secretary of the Interior delegated its authority over the Trail’s administration to the National Park Service, and that the Leasing Act prohibits pipeline rights-of-way through lands in the National Park System. Held: Because the Department of the Interior’s decision to assign responsibility over the Appalachian Trail to the National Park Service did not transform the land over which the Trail passes into land within the National Park System, the Forest Service had the authority to issue the special use permit. Pp. 3–18. (a) These cases involve the interaction of multiple federal laws. The Weeks Act provided for the acquisition of lands for inclusion in the National Forest System, stating that such lands \"shall be permanently reserved, held, and administered as national forest lands.\" 16 U. S. C. §521. The Forest Service, with authority granted by the Secretary of Agriculture, has jurisdiction over the National Forest System, including the George Washington National Forest. The National Trails System Act (Trails Act) establishes national scenic and national historic trails, 16 U. S. C. §1244(a), including the Appalachian Trail, §1244(a)(1). It also empowers the Secretary of the Interior to establish the Trail’s location and width by entering into \"rights-of-way\" agreements with other federal agencies, States, local governments, and private landowners. §§1246(a)(2), (d), (e). The Leasing Act enables any \"appropriate agency head\" to grant \"[r]ights-of-way through any Federal lands . . . for pipeline purposes,\" 30 U. S. C. §185(a), defining \"Federal lands\" as \"all lands owned by the United States,\" except (as relevant) lands in the National Park System, §185(b). The National Park System is, in turn, defined as \"any area of land and water now and hereafter administered by the Secretary of the Interior, through the National Park Service for park, monument, historic, parkway, recreational, or other purposes.\" 54 U. S. C. §100501. Pp. 3–5. (b) An examination of the interests and authority granted under the Trails Act shows that the Forest Service \"right-of-way\" agreements with the National Park Service for the Appalachian Trail did not convert \"Federal lands\" under the Leasing Act into \"lands\" within the \"National Park System.\" Pp. 5–13. (1) A right-of-way is a type of easement. And easements grant only nonpossessory rights of use limited to the purposes specified in the easement agreement: They are not land; they merely burden land that continues to be owned by another. The same principles that apply to right-of-way agreements between private parties apply here, even though the Federal Government owns all lands involved. A right-ofway between two agencies grants only an easement across the land, not jurisdiction over the land itself. Read in light of basic property law principles, then, the plain language of the Trails Act and the agreement between the two agencies did not divest the Forest Service of jurisdiction over the lands crossed by the Trail. Pp. 7–10. (2) The various duties described in the Trails Act—that the Secretary of the Interior (through the National Park Service) administers the Trail \"primarily as a footpath,\" 16 U. S. C. §1244(a)(1); can designate Trail uses, provide Trail markers, and establish interpretative and informational sites, §1246(c); and can regulate the Trail’s \"protection, management, development, and administration,\" §1246(i)—reinforce the conclusion that the agency responsible for the Trail has the limited role of administering a trail easement, but that the underlying land remains within the Forest Service’s jurisdiction. Pp. 10–11. (3) This conclusion is also reinforced by the fact that Congress spoke in terms of rights-of-way in the Trails Act rather than in terms of land transfers, as it has unequivocally and directly done in multiple other statutes when it has intended to transfer land from one agency to another. See, e.g., Wild and Scenic Rivers Act, 16 U. S. C. §1281(c). Pp. 12–13. (c) Respondents’ theory—that the National Park Service administers the Trail, and therefore the lands that the Trail crosses—depends on presuming, with no clear congressional command, a vast expansion of the Park Service’s jurisdiction and a significant curtailment of the Forest Service’s express authority to grant pipeline rights-of-way on \"lands owned by the United States.\" 30 U. S. C. §185(b). It also has striking implications for federalism and private property rights, especially given that Congress has used express language in other statutes when it has intended to transfer lands between agencies. Pp. 13–17. 911 F. 3d 150, reversed and remanded.", "opinion": "We granted certiorari in these consolidated cases to decide whether the United States Forest Service has authority under the Mineral Leasing Act, 30 U. S. C. §181 et seq., to grant rights-of-way through lands within national forests traversed by the Appalachian Trail. 588 U. S. ___ (2019). We hold that the Mineral Leasing Act does grant the Forest Service that authority and therefore reverse the judgment of the Court of Appeals for the Fourth Circuit. I A In 2015, petitioner Atlantic Coast Pipeline, LLC (Atlantic) filed an application with the Federal Energy Regulatory Commission to construct and operate an approximately 604-mile natural gas pipeline extending from West Virginia to North Carolina. The pipeline’s proposed route traverses 16 miles of land within the George Washington National Forest. The Appalachian National Scenic Trail (Appalachian Trail or Trail) also crosses parts of the George Washington National Forest. To construct the pipeline, Atlantic needed to obtain special use permits from the United States Forest Service for the portions of the pipeline that would pass through lands under the Forest Service’s jurisdiction. In 2018, the Forest Service issued these permits and granted a right-of-way that would allow Atlantic to place a 0.1-mile segment of pipe approximately 600 feet below the Appalachian Trail in the George Washington National Forest. B Respondents Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee, and Wild Virginia filed a petition for review in the Fourth Circuit. They contended that the issuance of the special use permit for the right-of-way under the Trail, as well as numerous other aspects of the Forest Service’s regulatory process, violated the Mineral Leasing Act (Leasing Act), 41 Stat. 437, 30 U. S. C. §181 et seq., the National Environmental Policy Act of 1969, 83 Stat. 852, 42 U. S. C. §4321 et seq., the National Forest Management Act of 1976, 90 Stat. 2952, 16 U. S. C. §1604, and the Administrative Procedure Act, 5 U. S. C. §500 et seq. Atlantic intervened in the suit. The Fourth Circuit vacated the Forest Service’s special use permit after holding that the Leasing Act did not empower the Forest Service to grant the pipeline right-of-way beneath the Trail. As relevant here, the court concluded that the Appalachian Trail had become part of the National Park System because, though originally charged with the Trail’s administration, 16 U. S. C. §1244(a)(1), the Secretary of the Interior delegated that duty to the National Park Service, 34 Fed. Reg. 14337 (1969). In the Fourth Circuit’s view, this delegation made the Trail part of the National Park System because the Trail was now an \"area of land . . . administered by the Secretary [of the Interior] acting through the Director [of the National Park Service].\" 54 U. S. C. §100501. Because it concluded the Trail was now within the National Park System, the court held that the Trail was beyond the authority of \"the Secretary of the Interior or appropriate agency head\" to grant pipeline rightsof-way under the Leasing Act. 30 U. S. C. §185(a). See 911 F. 3d 150, 179–181 (CA4 2018).1 II These cases involve the interaction of multiple federal laws. We therefore begin by summarizing the relevant statutory and regulatory background. A Congress enacted the Weeks Act in 1911, Pub. L. 61–435, 36 Stat. 961, which provided for the acquisition of lands for inclusion in the National Forest System, see 16 U. S. C. §§516–517. The Weeks Act also directed that lands acquired for the National Forest System \"shall be permanently reserved, held, and administered as national forest lands.\" §521. Though Congress initially granted the Secretary of Agriculture the authority to administer national forest lands, §472, the Secretary has delegated that authority to the Forest Service, 36 CFR §200.3(b)(2)(i) (2019). What is now known as the George Washington National Forest was established as a national forest in 1918, see Proclamation No. 1448, 40 Stat. 1779, and renamed the George Washington National Forest in 1932, Exec. Order No. 5867. No party here disputes that the George Washington National Forest was acquired for inclusion in the National Forest System and that it is under the jurisdiction of the Forest Service. See 16 U. S. C. §1609. B Enacted in 1968, the National Trails System Act (Trails Act), among other things, establishes national scenic and national historic trails. 16 U. S. C. §1244(a). See 82 Stat. 919, codified at 16 U. S. C. §1241 et seq. The Appalachian Trail was one of the first two trails created under the Act. §1244(a)(1). Under the statute, the Appalachian Trail \"shall be administered primarily as a footpath by the Secretary of the Interior, in consultation with the Secretary of Agriculture.\" Ibid. The statute empowers the Secretary of the Interior to establish the location and width of the Appalachian Trail by entering into \"rights-of-way\" agreements with other federal agencies as well as States, local governments, and private landowners. §§1246(a)(2), (d), (e). However, the Trails Act also contains a proviso stating that \"[n]othing contained in this chapter shall be deemed to transfer among Federal agencies any management responsibilities established under any other law for federally administered lands which are components of the National Trails System.\" §1246(a)(1)(A). The Trails Act currently establishes 30 national historic and national scenic trails. See §§1244(a)(1)–(30). It assigns responsibility for most of those trails to the Secretary of the Interior. Ibid. Though the Act is silent on the issue of delegation, the Department of the Interior has delegated the administrative responsibility over each of those trails to either the National Park Service or the Bureau of Land Management, both of which are housed within the Department of the Interior. Congressional Research Service, M. De Santis & S. Johnson, The National Trails System: A Brief Overview 2–3 (Table 1), 4 (Fig. 1) (2020). Currently, the National Park Service administers 21 trails, the Bureau of Land Management administers 1 trail, and the two agencies co-administer 2 trails. Ibid. The Secretary of Interior delegated his authority over the Appalachian Trail to the National Park Service in 1969. 34 Fed. Reg. 14337. C In 1920, Congress passed the Leasing Act, which enabled the Secretary of the Interior to grant pipeline rights-of-way through \"public lands, including the forest reserves,\" §28, 41 Stat. 449. Congress amended the Leasing Act in 1973 to provide that not only the Secretary of the Interior but also any \"appropriate agency head\" may grant \"[r]ights-of-way through any Federal lands . . . for pipeline purposes.\" Pub. L. 93–153, 87 Stat. 576, codified at 30 U. S. C. §185(a). Notably, the 1973 amendment also defined \"Federal lands\" to include \"all lands owned by the United States, except lands in the National Park System, lands held in trust for an Indian or Indian tribe, and lands on the Outer Continental Shelf.\" 87 Stat. 577, codified at 30 U. S. C. §185(b). In 1970, Congress defined the National Park System as \"any area of land and water now and hereafter administered by the Secretary of the Interior, through the National Park Service for park, monument, historic, parkway, recreational, or other purposes.\" §2(b), 84 Stat. 826, codified at 54 U. S. C. §100501. III We are tasked with determining whether the Leasing Act enables the Forest Service to grant a subterranean pipeline right-of-way some 600 feet under the Appalachian Trail. To do this, we first focus on the distinction between the lands that the Trail traverses and the Trail itself, because the lands (not the Trail) are the object of the relevant statutes. Under the Leasing Act, the \"Secretary of the Interior or appropriate agency head\" may grant pipeline rights-of-way across \"Federal lands.\" 30 U. S. C. §185(a) (emphasis added). The Forest Service is an \"appropriate agency head\" for \"Federal lands\" over \"which [it] has jurisdiction.\" §185(b)(3). As stated above, it is undisputed that the Forest Service has jurisdiction over the \"Federal lands\" within the George Washington National Forest. The question before us, then, becomes whether these lands within the forest have been removed from the Forest Service’s jurisdiction and placed under the Park Service’s control because the Trail crosses them. If no transfer of jurisdiction has occurred, then the lands remain National Forest lands, i.e., \"Federal lands\" subject to the grant of a pipeline right-of-way. If, on the other hand, jurisdiction over the lands has been transferred to the Park Service, then the lands fall under the Leasing Act’s carve-out for \"lands in the National Park System,\" thus precluding the grant of the right-of-way. §185(b)(1) (emphasis added). We conclude that the lands that the Trail crosses remain under the Forest Service’s jurisdiction and, thus, continue to be \"Federal lands\" under the Leasing Act. A We begin our analysis by examining the interests and authority granted under the Trails Act. Pursuant to the Trails Act, the Forest Service entered into \"right-of-way\" agreements with the National Park Service \"for [the] approximately 780 miles of Appalachian Trail route within national forests,\" including the George Washington National Forest. 36 Fed. Reg. 2676 (1971); see also 16 U. S. C. §1246(a)(2); 36 Fed. Reg. 19805.2 These \"right-of-way\" agreements did not convert \"Federal lands\" into \"lands\" within the \"National Park System.\" 1 A right-of-way is a type of easement. In 1968, as now, principles of property law defined a right-of-way easement as granting a nonowner a limited privilege to \"use the lands of another.\" Kelly v. Rainelle Coal Co., 135 W. Va. 594, 604, 64 S. E. 2d 606, 613 (1951); Builders Supplies Co. of Goldsboro, N. C., Inc. v. Gainey, 282 N. C. 261, 266, 192 S. E. 2d 449, 453 (1972); see also R. Powell & P. Rohan, Real Property §405 (1968); Restatement (First) of Property §450 (1944). Specifically, a right-of-way grants the limited \"right to pass . . . through the estate of another.\" Black’s Law Dictionary 1489 (4th ed. 1968). Courts at the time of the Trails Act’s enactment acknowledged that easements grant only nonpossessory rights of use limited to the purposes specified in the easement agreement. See, e.g., Bunn v. Offutt, 216 Va. 681, 684, 222 S. E. 2d 522, 525 (1976). And because an easement does not dispossess the original owner, Barnard v. Gaumer, 146 Colo. 409, 412, 361 P. 2d 778, 780 (1961), \"a possessor and an easement holder can simultaneously utilize the same parcel of land,\" J. Bruce & J. Ely, Law of Easements and Licenses in Land §1:1, p. 1–5 (2015). Thus, it was, and is, elementary that the grantor of the easement retains ownership over \"the land itself.\" Minneapolis Athletic Club v. Cohler, 287 Minn. 254, 257, 177 N. W. 2d 786, 789 (1970) (emphasis added). Stated more plainly, easements are not land, they merely burden land that continues to be owned by another. See Bruce, Law of Easements and Licenses in Land §1:1, at 1–2. If analyzed as a right-of-way between two private landowners, determining whether any land had been transferred would be simple. If a rancher granted a neighbor an easement across his land for a horse trail, no one would think that the rancher had conveyed ownership over that land. Nor would anyone think that the rancher had ceded his own right to use his land in other ways, including by running a water line underneath the trail that connects to his house. He could, however, make the easement grantee responsible for administering the easement apart from the land. Likewise, when a company obtains a right-of-way to lay a segment of pipeline through a private owner’s land, no one would think that the company had obtained ownership over the land through which the pipeline passes. Although the Federal Government owns all lands involved here, the same general principles apply. We must ascertain whether one federal agency has transferred jurisdiction over lands—meaning \"jurisdiction to exercise the incidents of ownership\"—to another federal agency. Brief for Petitioner Atlantic Coast Pipeline, LLC, 22–23, n. 2. The Trails Act refers to the granted interests as \"rights-of-way,\" both when describing agreements with the Federal Government and with private and state property owners. 16 U. S. C. §§1246(a)(2), (e). When applied to a private or state property owner, \"right-of-way\" would carry its ordinary meaning of a limited right to enjoy another’s land. Nothing in the statute suggests that the term adopts a more expansive meaning when the right is granted to a federal agency, and we do \"not lightly assume that Congress silently attaches different meanings to the same term in the same . . . statute,\" Azar v. Allina Health Services, 587 U. S. ___, ___– ___ (2019) (slip op., at 7–8). Accordingly, as would be the case with private or state property owners, a right-of-way between two agencies grants only an easement across the land, not jurisdiction over the land itself.3 The dissent notes that the Federal Government has referred to the Trail as an \"area\" and a \"unit\" and has described the Trail in terms of \"acres.\" See post, at 7–10, 13 (opinion of SOTOMAYOR, J.). In the dissent’s view, this indicates that the Trail and the land are the same. This is not so. Like other right-of-way easements, the Trail burdens \"a particular parcel of land.\" Bruce, Law of Easements and Licenses in Land §1:1, at 1–6. It is thus not surprising that the Government might refer to the Trail as an \"area,\" much as one might mark out on his property the \"area\" of land burdened by a sewage easement. The fact remains that the land and the easement are still separate. The dissent also cites provisions of the Trails Act that discuss \"lands\" to be included in the Trail. See post, at 12. But this, too, is consistent with our conclusion that the Trail is an easement. Like all easements, the parcel of land burdened by the easement has particular metes and bounds. See, e.g., Carnemella v. Sadowy, 147 App. Div. 2d 874, 876, 538 N. Y. S. 2d 96, 98 (1989) (\"[T]he subject easement . . . reasonably described the portion of the property where the easement existed\"); Sorrell v. Tennessee Gas Transmission Co., 314 S. W. 2d 193, 195–196 (Ky. 1958). In fact, without such descriptions, parties to an easement agreement would be unable to understand their rights or enforce another party’s obligations under the easement agreement. Thus, there is nothing noteworthy about the fact that the Trails Act discusses whether particular lands should be included within the metes and bounds of the tracts of land burdened by the easement. In short, none of the characterizations identified by the dissent changes the fact that the burden on the land and the land itself remain separate.4 In sum, read in light of basic property law principles, the plain language of the Trails Act and the agreement between the two agencies did not divest the Forest Service of jurisdiction over the lands that the Trail crosses. It gave the Department of the Interior (and by delegation the National Park Service) an easement for the specified and limited purpose of establishing and administering a Trail, but the land itself remained under the jurisdiction of the Forest Service. To restate this conclusion in the parlance of the Leasing Act, the lands that the Trail crosses are still \"Federal lands,\" 30 U. S. C. §185(a), and the Forest Service may grant a pipeline right-of-way through them—just as it granted a right-of-way for the Trail. Sometimes a complicated regulatory scheme may cause us to miss the forest for the trees, but at bottom, these cases boil down to a simple proposition: A trail is a trail, and land is land. 2 The various duties described in the Trails Act reinforce that the agency responsible for the Trail has a limited role of administering a trail easement, but that the underlying land remains within the jurisdiction of the Forest Service. The Trails Act states that the Secretary of the Interior (and by delegation the National Park Service) shall \"administe[r]\" the Trail \"primarily as a footpath.\" 16 U. S. C. §1244(a)(1). The Secretary is charged with designating Trail uses, providing Trail markers, and establishing interpretative and informational sites \"to present information to the public about the [T]rail.\" §1246(c). He also has the authority to pass regulations governing Trail protection and good conduct and can regulate the \"protection, management, development, and administration\" of the Trail. §1246(i). Though the Trails Act states that the responsible agency shall \"provide for\" the maintenance of the Trail, §1246(h)(1) (emphasis added), it is the Forest Service that performs the necessary physical work. As the Government explained at oral argument (and as respondents did not dispute), \"[i]f a tree falls on forest lands over the trail, it’s the Forest Service that’s responsible for it. You don’t call the nine [National] Park Service employees at Harpers Ferry [in West Virginia] and ask them to come out and fix the tree.\" Tr. of Oral Arg. 5. These statutory duties refer to the Trail easement, not the lands over which the easement passes. The dissent resists this conclusion by asserting that the National Park Service \"administers\" the Trail, and that so long as that is true, the Trail is land within the National Park System. See post, at 15–16. But the National Park Service does not administer the \"land\" crossed by the Trail. It administers the Trail as an easement—an easement that is separate from the underlying land. Finally, Congress has used unequivocal and direct language in multiple statutes when it wished to transfer land from one agency to another, just as one would expect if a property owner conveyed land in fee simple to another private property owner. In the Wild and Scenic Rivers Act, for instance, which was enacted the same day as the Trails Act, Congress specified that \"[a]ny component of the national wild and scenic rivers system that is administered by the Secretary of the Interior through the National Park Service shall become a part of the [N]ational [P]ark [S]ystem.\" §10(c), 82 Stat. 916, codified at 16 U. S. C. §1281(c) (emphasis added). That statute also explicitly permits the head of an agency \"to transfer to the appropriate secretary jurisdiction over such lands.\" §6(e), 82 Stat. 912–913, codified at 16 U. S. C. §1277(e) (emphasis added). Congress has also authorized the Department of the Interior \"to transfer to the jurisdiction of the Secretary of Agriculture for national forest purposes lands or interests in lands acquired for or in connection with the Blue Ridge Parkway\" and specifies that \"[l]ands transferred under this Act shall become national forest lands.\" Pub. L. 82–336, 66 Stat. 69 (emphasis added). Similar language appears in a host of other statutes. See §§5(a)(2), 8(c)(2), 114 Stat. 2529, 2533; Pub. L. 89–446, 80 Stat. 199; §7(c), 79 Stat. 217; Pub. L. 88–415, 78 Stat. 388. The fact that Congress chose to speak in terms of rights-ofway in the Trails Act, rather than in terms of land transfers, reinforces the conclusion that the Park Service has a limited role over only the Trail, not the lands that the Trail crosses. See Reves v. Ernst & Young, 507 U. S. 170, 178– 179 (1993). For these reasons, we hold that the Trails Act did not transfer jurisdiction of the lands crossed by the Trail from the Forest Service to the Department of the Interior. It created a trail easement and gave the Department of the Interior the administrative responsibilities concomitant with administering the Trail as a trail. Accordingly, because the Department of the Interior had no jurisdiction over any lands, its delegation to the National Park Service did not convert the Trail into \"lands in the National Park System,\" 30 U. S. C. §185(b)(1) (emphasis added)—i.e., an \"area of land . . . administered by the Secretary [of the Interior] acting through the Director [of the National Park Service].\" 54 U. S. C. §100501 (emphasis added). The Forest Service therefore retained the authority to grant Atlantic a pipeline right-of-way. B 1 Respondents take a markedly different view, which is shared by the dissent. According to respondents, the Trail cannot be separated from the underlying land. In their view, if the National Park Service administers the Trail, then it also administers the lands that the Trail crosses, and no pipeline rights-of-way may be granted. Respondents’ argument that the National Park Service administers the Trail (and therefore the lands that the Trail crosses) proceeds in four steps. First, the Trails Act granted the Department of the Interior the authority to administer the Trail. 16 U. S. C. §1244(a)(1). Second, the Department of the Interior delegated those responsibilities to the National Park Service in 1969. 34 Fed. Reg. 14337. Third, in 1970, Congress defined the National Park System to include \"any area of land and water administered by the Secretary [of the Interior] acting through the Director [of the National Park Service].\" 54 U. S. C. §100501. Under respondents’ view, the 1970 National Park System definition made the Trail part of the National Park System. But one more step was still required to place the Trail outside the Forest Service’s Leasing Act pipeline authority. That final step occurred in 1973, when the amendment to the Leasing Act carved out lands in the National Park System from the definition of the \"Federal lands\" through which pipeline rights-of-way could be granted. 30 U. S. C. §185(b)(1). Because the Trail had become part of the National Park Service in 1970, respondents conclude that the 1973 carve-out applied to the Trail. Therefore, in their view, the Forest Service cannot grant pipeline rights-of-way under the parcels on which there is a right-of-way for the Appalachian Trail. This circuitous path misses the mark. As described above, under the plain language of the Trails Act and basic property principles, responsibility for the Trail and jurisdiction over the lands that the Trail crosses can and must be separated for purposes of determining whether the Forest Service can grant a right-of-way. See supra, at 6–10. 2 Even accepting respondents’ argument on its own terms, however, we remain unpersuaded. Respondents’ entire theory depends on an administrative action about which the statutes at issue are completely silent: the Department of the Interior’s voluntary decision to assign responsibility over a given trail to the National Park Service rather than to the Bureau of Land Management. To reiterate, respondents contend that the Department of the Interior’s decision to delegate responsibility over a trail to the National Park Service renders that trail an \"area of land . . . administered by the Secretary [of the Interior], acting through the [Park Service.]\" 54 U. S. C. §100501. Respondents’ theory requires us to accept that, without a word from Congress, the Department of the Interior has the power to vastly expand the scope of the National Park Service’s jurisdiction through its delegation choices. See Addendum to Reply Brief for Petitioner Atlantic Coast Pipeline, LLC, 1a–2a. After all, respondents’ view would not just apply to the approximately 2,000-mile-long Appalachian Trail. It would apply equally to all 21 national historic and national scenic trails currently administered by the National Park Service. See Congressional Research Service, National Trails System. Under our precedents, when Congress wishes to \"‘alter the fundamental details of a regulatory scheme,’\" as respondents contend it did here through delegation, we would expect it to speak with the requisite clarity to place that intent beyond dispute. See Epic Systems Corp. v. Lewis, 584 U. S. ___, ___ (2018) (slip op., at 15) (quoting Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001)). We will not presume that the act of delegation, rather than clear congressional command, worked this vast expansion of the Park Service’s jurisdiction and significant curtailment of the Forest Service’s express authority to grant pipeline rights-of-way on \"lands owned by the United States.\" 30 U. S. C. §185(b). Respondents’ theory also has striking implications for federalism and private property rights. Respondents do not contest that, in addition to federal lands, these 21 trails cross lands owned by States, local governments, and private landowners. See also post, at 21 (acknowledging that the Trail alone \"comprises 58,110.94 acres of Non-Federal land, including 8,815.98 acres of Private land\" (internal quotation marks omitted)). Under respondents’ view, these privately owned and state-owned lands would also become lands in the National Park System.6 Our precedents require Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property. Cf. Gregory v. Ashcroft, 501 U. S. 452, 460 (1991). Finally, reliance on the Department of the Interior’s delegation of its Trails Act authority is especially questionable here, given that Congress has used express language in other statutes when it wished to transfer lands between agencies. See supra, at 12. Congress not only failed to enact similar language in the Trails Act, but it clearly expressed the opposite view. The entire Trails Act must be read against the backdrop of the Weeks Act, which states that lands acquired for the National Forest System—including the George Washington National Forest—\"shall be permanently reserved, held, and administered as national forest lands.\" 16 U. S. C. §521. The Trails Act further provides that \"[n]othing contained in this chapter shall be deemed to transfer among Federal agencies any management responsibilities established under any other law for federally administered lands which are components of the National Trails System.\" §1246(a)(1)(A). These two provisions, when combined with the Trails Act’s use of the term \"rights-of-way\" and the administrative duties set out in the Trails Act, provide much clearer—and more textual— guides to Congress’ intent than an agency’s silent decision to delegate responsibilities to the National Park Service. In sum, we conclude that the Department of the Interior’s unexplained decision to assign responsibility over certain trails to the National Parks System and the Leasing Act’s definition of federal lands simply cannot bear the weight of respondents’ interpretation. IV We hold that the Department of the Interior’s decision to assign responsibility over the Appalachian Trail to the National Park Service did not transform the land over which the Trail passes into land within the National Park System. Accordingly, the Forest Service had the authority to issue the permit here. For the foregoing reasons, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion."},
{"docket_number": "18-8369", "syllabus": "The Prison Litigation Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule, which generally prevents a prisoner from bringing suit in forma pauperis (IFP) if he has had three or more prior suits \"dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.\" 28 U. S. C. §1915(g). Petitioner Arthur Lomax, an inmate in a Colorado prison, filed this suit against respondent prison officials to challenge his expulsion from the facility’s sex-offender treatment program. He also moved for IFP status, but he had already brought three unsuccessful legal actions during his time in prison. If the dispositions of those cases qualify as strikes under Section 1915(g), Lomax may not now proceed IFP. The courts below concluded that they did, rejecting Lomax’s argument that two of the dismissals should not count as strikes because they were without prejudice. Held: Section 1915(g)’s three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without. This case begins, and pretty much ends, with Section 1915(g)’s text. The provision’s broad language covers all dismissals for failure to state a claim, whether issued with or without prejudice to a plaintiff’s ability to reassert his claim in a later action. A strike-call under Section 1915(g) thus hinges exclusively on the basis for the dismissal, regardless of the decision’s prejudicial effect. To reach the opposite result would require reading the word \"dismissed\" in Section 1915(g) as \"dismissed with prejudice.\" Doing so would also introduce inconsistencies into the PLRA, which has three other provisions mentioning \"dismiss[als]\" for \"fail[ure] to state a claim.\" §§1915(e)(2)(B)(ii), 1915A(b); 42 U. S. C. §1997e(c). As the parties agree, those provisions do not deprive courts of the ability to dismiss suits without prejudice. Lomax nonetheless maintains that Section 1915(g)’s phrase \"dismissed [for] fail[ure] to state a claim\" is a \"legal term of art\" referring only to dismissals with prejudice. To support this view, he points to Federal Rule of Civil Procedure 41(b), which tells courts to treat a dismissal \"as an adjudication on the merits\"—meaning a dismissal with prejudice—where the dismissal order does not specify. But Rule 41(b) is necessary precisely because \"dismissed for failure to state a claim\" refers to dismissals both with and without prejudice. The existence of the rule thus undercuts Lomax’s position. Lomax also argues that the Court should interpret the phrase \"failure to state a claim\" based on the other two grounds for dismissal listed in Section 1915(g). But contra Lomax’s view, courts can and sometimes do dismiss at least frivolous actions without prejudice. Still more fundamentally, interpreting the phrase \"failure to state a claim\" based on the pre-existing terms \"frivolous\" and \"malicious\" would defeat the PLRA’s expansion of the statute beyond what was already there. Pp. 3–7. 754 Fed. Appx. 756, affirmed.", "opinion": "To help staunch a \"flood of nonmeritorious\" prisoner litigation, the Prison Litigation Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule. Jones v. Bock, 549 U. S. 199, 203 (2007). That rule generally prevents a prisoner from bringing suit in forma pauperis (IFP)—that is, without first paying the filing fee—if he has had three or more prior suits \"dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.\" 28 U. S. C. §1915(g). Today we address whether a suit dismissed for failure to state a claim counts as a strike when the dismissal was without prejudice. We conclude that it does: The text of Section 1915(g)’s three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without. I Petitioner Arthur Lomax is an inmate in a Colorado prison. He filed this suit against respondent prison officials to challenge his expulsion from the facility’s sex-offender treatment program. As is common in prison litigation, he also moved for IFP status to allow his suit to go forward before he pays the $400 filing fee. For that motion to succeed, Lomax must avoid Section 1915(g). That provision bars further IFP litigation once a prisoner has had at least three prior suits dismissed on specified grounds.1 And Lomax is no rookie litigant. During his time in prison, he has already brought three unsuccessful legal actions (against various corrections officers, prosecutors, and judges). If the dispositions of those cases qualify as strikes under Section 1915(g), Lomax may not now proceed IFP. The courts below ruled that Lomax had struck out. The District Court denied his motion for IFP status, finding that all three of his prior suits had been dismissed for failure to state a claim—one of the grounds specified in Section 1915(g). See App. 65–66.2 On appeal, Lomax argued that two of those dismissals should not count as strikes because they were without prejudice, thus allowing him to file a later suit on the same claim. The Court of Appeals for the Tenth Circuit rejected that argument. Relying on Circuit precedent, the Court held it \"immaterial to the strikes analysis\" whether a dismissal was with or without prejudice. 754 Fed. Appx. 756, 759 (2018) (quoting Childs v. Miller, 713 F. 3d 1262, 1266 (CA10 2013)). The Courts of Appeals have long divided over whether a dismissal without prejudice for failure to state a claim qualifies as a strike under Section 1915(g).3 In line with our duty to call balls and strikes, we granted certiorari to resolve the split, 589 U. S. ___ (2019), and we now affirm. II This case begins, and pretty much ends, with the text of Section 1915(g). Under that provision, a prisoner accrues a strike for any action \"dismissed on the ground[] that it . . . fails to state a claim upon which relief may be granted.\" That broad language covers all such dismissals: It applies to those issued both with and without prejudice to a plaintiff ’s ability to reassert his claim in a later action.4 A strikecall under Section 1915(g) thus hinges exclusively on the basis for the dismissal, regardless of the decision’s prejudicial effect. To reach the opposite result—counting prejudicial orders alone as strikes—we would have to read the simple word \"dismissed\" in Section 1915(g) as \"dismissed with prejudice.\" But this Court may not narrow a provision’s reach by inserting words Congress chose to omit. See, e.g., Virginia Uranium, Inc. v. Warren, 587 U. S. ___, ___ (2019) (lead opinion of GORSUCH, J.) (slip op., at 1). Indeed, to do so would violate yet another rule of statutory construction: \"In all but the most unusual situations, a single use of a statutory phrase must have a fixed meaning\" across a statute. Cochise Consultancy, Inc. v. United States ex rel. Hunt, 587 U. S. ___, ___ (2019) (slip op., at 5). The PLRA includes three other provisions mentioning \"dismiss[als]\" for \"fail[ure] to state a claim\"—each enabling courts to dismiss sua sponte certain prisoner suits on that ground. §§1915(e)(2)(B)(ii), 1915A(b); 42 U. S. C. §1997e(c). No one here thinks those provisions deprive courts of the ability to dismiss those suits without prejudice. See Reply Brief 15; Brief for Respondents 21–24; Brief for United States as Amicus Curiae 21–22. Nor would that be a plausible position. The broad statutory language—on its face covering dismissals both with and without prejudice— tracks courts’ ordinary authority to decide whether a dismissal for failure to state a claim should have preclusive effect. So reading the PLRA’s three-strikes rule to apply only to dismissals with prejudice would introduce inconsistencies into the statute. The identical phrase would then bear different meanings in provisions almost next-door to each other. Still, Lomax maintains that the phrase \"dismissed [for] fail[ure] to state a claim\" in Section 1915(g) is a \"legal term of art\" referring only to dismissals with prejudice. Reply Brief 4. To support that view, he relies on a procedural rule used to answer a different question. When a court dismisses a case for failure to state a claim, but neglects to specify whether the order is with or without prejudice, how should a later court determine its preclusive effect? Federal Rule of Civil Procedure 41(b), codifying an old equitable principle, supplies the answer: It tells courts to treat the dismissal \"as an adjudication on the merits\"—meaning a dismissal with prejudice. See Durant v. Essex Co., 7 Wall. 107, 109 (1869). According to Lomax, \"Section 1915(g) should be interpreted in light of this legal backdrop.\" Brief for Petitioner 17. He reasons: Because Rule 41(b) presumes that an order stating only \"dismissed for failure to state a claim\" is with prejudice, the same language when used in Section 1915(g) should bear that same meaning. And if so, the provision would assign a strike to only with-prejudice dismissals for failure to state a claim. But that argument gets things backwards. The Rule 41(b) presumption (like its older equitable counterpart) does not convert the phrase \"dismissed for failure to state a claim\" into a legal term of art meaning \"dismissed with prejudice\" on that ground. To the contrary, Rule 41(b) is necessary because that phrase means only what it says: \"dismissed for failure to state a claim\"—whether or not with prejudice. In other words, the phrase’s indifference to prejudicial effect is what creates the need for a default rule to determine the import of a dismissal when a court fails to make that clear. Rule 41(b), then, actually undercuts Lomax’s position: Its very existence is a form of proof that the language used in Section 1915(g) covers dismissals both with and without prejudice. And here too, confirmation of the point comes from the PLRA’s other provisions referring to \"dismiss[als]\" for \"fail[ure] to state a claim.\" See supra, at 4. If that phrase had really become a legal term of art implying \"with prejudice,\" then those provisions would prevent courts from dismissing prisoner suits without prejudice for failure to state a claim. But Lomax himself does not accept that improbable reading. See ibid. His supposed \"term of art\" is strangely free-floating, transforming ordinary meaning in one place while leaving it alone in all others. Lomax also makes an argument based on the two other grounds for dismissal listed in Section 1915(g). Recall that the provision counts as strikes dismissals of actions that are \"frivolous\" or \"malicious,\" along with those that fail to state a claim. See supra, at 1, 2, n. 1. In Lomax’s view, the first two kinds of dismissals \"reflect a judicial determination that a claim is irremediably defective\"—that it \"cannot succeed and should not return to court.\" Brief for Petitioner 11, 22 (internal quotation marks omitted). To \"harmonize [all] three grounds for strikes,\" he continues, the same must be true of dismissals for failure to state a claim. Id., at 23; see id., at 21 (invoking the \"interpretive canon noscitur a sociis, a word is known by the company it keeps\" (internal quotation marks omitted)). So Section 1915(g), Lomax concludes, must capture only the subset of those dismissals that are issued with prejudice—the ones disposing of \"irredeemable\" suits. Id., at 21. As an initial matter, the very premise of that argument is mistaken. Contra Lomax’s view, courts can and sometimes do conclude that frivolous actions are not \"irremediably defective,\" and thus dismiss them without prejudice. See, e.g., Marts v. Hines, 117 F. 3d 1504, 1505 (CA5 1997); see also Jackson v. Florida Dept. of Financial Servs., 479 Fed. Appx. 289, 292 (CA11 2012) (similarly if less commonly, dismissing a malicious action without prejudice). Indeed, this Court has suggested that a trial court might abuse its discretion by dismissing an IFP suit with prejudice if \"frivolous factual allegations [can] be remedied through more specific pleading.\" Denton v. Hernandez, 504 U. S. 25, 34 (1992). So on Lomax’s own metric—whether down the road the plaintiff ’s claim might return—the dismissals he claims would be outliers in Section 1915(g) in fact would have company. And because that is true, his reason for excluding those decisions from the provision collapses. If dismissals without prejudice for frivolousness count as a strike under Section 1915(g), then why not for failure to state a claim too? Still more fundamentally, Lomax is wrong to suggest that every dismissed action encompassed in Section 1915(g) must closely resemble frivolous or malicious ones. The point of the PLRA, as its terms show, was to cabin not only abusive but also simply meritless prisoner suits. Before the PLRA, the statute governing IFP claims targeted frivolous and malicious actions, but no others. See Neitzke v. Williams, 490 U. S. 319, 328 (1989). In the PLRA, Congress chose to go further—precisely by aiming as well at actions that failed to state a claim. The theory was that a \"flood of nonmeritorious claims,\" even if not in any way abusive, was \"effectively preclud[ing] consideration of \" suits more likely to succeed. Jones, 549 U. S., at 203. So we cannot, in the interest of \"harmonization,\" interpret the phrase \"failure to state a claim\" based on the pre-existing terms \"frivolous\" and \"malicious.\" Cf. Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 702, 705 (1995) (rejecting use of the noscitur canon when \"the Senate went out of its way to add\" a \"broad word\" to a statute). That would defeat the PLRA’s expansion of the statute beyond what was already there. III The text of the PLRA’s three-strikes provision makes this case an easy call. A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice. We therefore affirm the judgment below."},
{"docket_number": "18-1432", "syllabus": "Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen who demonstrates a likelihood of torture in the designated country of removal is entitled to relief under the international Convention Against Torture (CAT) and may not be removed to that country. If an immigration judge orders removal and denies CAT relief, the noncitizen may appeal both orders to the Board of Immigration Appeals and then to a federal court of appeals. But if the noncitizen has committed any crime specified in 8 U. S. C. §1252(a)(2)(C), the scope of judicial review of the removal order is limited to constitutional and legal challenges. See §1252(a)(2)(D). The Government sought to remove petitioner Nidal Khalid Nasrallah after he pled guilty to receiving stolen property. Nasrallah applied for CAT relief to prevent his removal to Lebanon. The Immigration Judge ordered Nasrallah removed and granted CAT relief. On appeal, the Board of Immigration Appeals vacated the CAT relief order and ordered Nasrallah removed to Lebanon. The Eleventh Circuit declined to review Nasrallah’s factual challenges to the CAT order because Nasrallah had committed a §1252(a)(2)(C) crime and Circuit precedent precluded judicial review of factual challenges to both the final order of removal and the CAT order in such cases. Held: Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order. Pp. 5–13. (a) Three interlocking statutes establish that CAT orders may be reviewed together with final orders of removal in a court of appeals. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorizes noncitizens to obtain direct \"review of a final order of removal\" in a court of appeals, §1252(a)(1), and requires that all challenges arising from the removal proceeding be consolidated for review, §1252(b)(9). The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) implements Article 3 of CAT and provides for judicial review of CAT claims \"as part of the review of a final order of removal.\" §2242(d). And the REAL ID Act of 2005 clarifies that final orders of removal and CAT orders may be reviewed only in the courts of appeals. §§1252(a)(4)–(5). Pp. 5–6. (b) Sections 1252(a)(2)(C) and (D) preclude judicial review of factual challenges only to final orders of removal. A CAT order is not a final \"order of removal,\" which in this context is defined as an order \"concluding that the alien is deportable or ordering deportation,\" §1101(a)(47)(A). Nor does a CAT order merge into a final order of removal, because a CAT order does not affect the validity of a final order of removal. See INS v. Chadha, 462 U. S. 919, 938. FARRA provides that a CAT order is reviewable \"as part of the review of a final order of removal,\" not that it is the same as, or affects the validity of, a final order of removal. Had Congress wished to preclude judicial review of factual challenges to CAT orders, it could have easily done so. Pp. 6– 9. (c) The standard of review for factual challenges to CAT orders is substantial evidence—i.e., the agency’s \"findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.\" §1252(b)(4)(B). The Government insists that the statute supplies no judicial review of factual challenges to CAT orders, but its arguments are unpersuasive. First, the holding in Foti v. INS, 375 U. S. 217, depends on an outdated interpretation of \"final orders of deportation\" and so does not control here. Second, the Government argues that §1252(a)(1) supplies judicial review only of final orders of removal, and if a CAT order is not merged into that final order, then no statute authorizes review of the CAT claim. But both FARRA and the REAL ID Act provide for direct review of CAT orders in the courts of appeals. Third, the Government’s assertion that Congress would not bar review of factual challenges to a removal order and allow such challenges to a CAT order ignores the importance of adherence to the statutory text as well as the good reason Congress had for distinguishing the two—the facts that rendered the noncitizen removable are often not in serious dispute, while the issues related to a CAT order will not typically have been litigated prior to the alien’s removal proceedings. Fourth, the Government’s policy argument—that judicial review of the factual components of a CAT order would unduly delay removal proceedings— has not been borne out in practice in those Circuits that have allowed factual challenges to CAT orders. Fifth, the Government fears that a decision allowing factual review of CAT orders would lead to factual challenges to other orders in the courts of appeals. But orders denying discretionary relief under §1252(a)(2)(B) are not affected by this decision, and the question whether factual challenges to statutory withholding orders under §1231(b)(3)(A) are subject to judicial review is not presented here. Pp. 9–13. 762 Fed. Appx. 638, reversed.", "opinion": "Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen may raise claims under the international Convention Against Torture, known as CAT. If the noncitizen demonstrates that he likely would be tortured if removed to the designated country of removal, then he is entitled to CAT relief and may not be removed to that country (although he still may be removed to other countries). If the immigration judge orders removal and denies CAT relief, the noncitizen may appeal to the Board of Immigration Appeals. If the Board of Immigration Appeals orders removal and denies CAT relief, the noncitizen may obtain judicial review in a federal court of appeals of both the final order of removal and the CAT order. In the court of appeals, for cases involving noncitizens who have committed any crime specified in 8 U. S. C. §1252(a)(2)(C), federal law limits the scope of judicial review. Those noncitizens may obtain judicial review of constitutional and legal challenges to the final order of removal, but not of factual challenges to the final order of removal. Everyone agrees on all of the above. The dispute here concerns the scope of judicial review of CAT orders for those noncitizens who have committed crimes specified in §1252(a)(2)(C). The Government argues that judicial review of a CAT order is analogous to judicial review of a final order of removal. The Government contends, in other words, that the court of appeals may review the noncitizen’s constitutional and legal challenges to a CAT order, but not the noncitizen’s factual challenges to the CAT order. Nasrallah responds that the court of appeals may review the noncitizen’s constitutional, legal, and factual challenges to the CAT order, although Nasrallah acknowledges that judicial review of factual challenges to CAT orders must be highly deferential. So the narrow question before the Court is whether, in a case involving a noncitizen who committed a crime specified in §1252(a)(2)(C), the court of appeals should review the noncitizen’s factual challenges to the CAT order (i) not at all or (ii) deferentially. Based on the text of the statute, we conclude that the court of appeals should review factual challenges to the CAT order deferentially. We therefore reverse the judgment of the U. S. Court of Appeals for the Eleventh Circuit. I Nidal Khalid Nasrallah is a native and citizen of Lebanon. In 2006, when he was 17 years old, Nasrallah came to the United States on a tourist visa. In 2007, he became a lawful permanent resident. In 2013, Nasrallah pled guilty to two counts of receiving stolen property. The U. S. District Court for the Western District of North Carolina sentenced Nasrallah to 364 days in prison. Based on Nasrallah’s conviction, the Government initiated deportation proceedings. See 8 U. S. C. §1227(a)(2)(A)(i). In those proceedings, Nasrallah applied for CAT relief to prevent his removal to Lebanon. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 114. Nasrallah alleged that he was a member of the Druze religion, and that he had been tortured by Hezbollah before he came to the United States. Nasrallah argued that he would be tortured again if returned to Lebanon.1 The Immigration Judge determined that Nasrallah was removable. As to the CAT claim, the Immigration Judge found that Nasrallah had previously suffered torture at the hands of Hezbollah. Based on Nasrallah’s past experience and the current political conditions in Lebanon, the Immigration Judge concluded that Nasrallah likely would be tortured again if returned to Lebanon. The Immigration Judge ordered Nasrallah removed, but also granted CAT relief and thereby blocked Nasrallah’s removal to Lebanon. On appeal, the Board of Immigration Appeals disagreed that Nasrallah likely would be tortured in Lebanon. The Board therefore vacated the order granting CAT relief and ordered Nasrallah removed to Lebanon. Nasrallah filed a petition for review in the U. S. Court of Appeals for the Eleventh Circuit, claiming (among other things) that the Board of Immigration Appeals erred in finding that he would not likely be tortured in Lebanon. Nasrallah raised factual challenges to the Board’s CAT order. Applying Circuit precedent, the Eleventh Circuit declined to review Nasrallah’s factual challenges. Nasrallah v. United States Attorney General, 762 Fed. Appx. 638 (2019). The court explained that Nasrallah had been convicted of a crime specified in 8 U. S. C. §1252(a)(2)(C). Noncitizens convicted of §1252(a)(2)(C) crimes may not obtain judicial review of factual challenges to a \"final order of removal.\" §§1252(a)(2)(C)–(D). Under Eleventh Circuit precedent, that statute also precludes judicial review of factual challenges to the CAT order.2 Nasrallah contends that the Eleventh Circuit should have reviewed his factual challenges to the CAT order because the statute bars review only of factual challenges to a \"final order of removal.\" According to Nasrallah, a CAT order is not a \"final order of removal\" and does not affect the validity of a final order of removal. Therefore, Nasrallah argues, the statute by its terms does not bar judicial review of factual challenges to a CAT order. The Courts of Appeals are divided over whether §§1252(a)(2)(C) and (D) preclude judicial review of factual challenges to a CAT order. Most Courts of Appeals have sided with the Government; the Seventh and Ninth Circuits have gone the other way. Compare Gourdet v. Holder, 587 F. 3d 1, 5 (CA1 2009); Ortiz-Franco v. Holder, 782 F. 3d 81, 88 (CA2 2015); Pieschacon-Villegas v. Attorney General of U. S., 671 F. 3d 303, 309–310 (CA3 2011); Oxygene v. Lynch, 813 F. 3d 541, 545 (CA4 2016); Escudero-Arciniega v. Holder, 702 F. 3d 781, 785 (CA5 2012); Tran v. Gonzales, 447 F. 3d 937, 943 (CA6 2006); Lovan v. Holder, 574 F. 3d 990, 998 (CA8 2009); Cole v. United States Attorney General, 712 F. 3d 517, 532 (CA11 2013), with Wanjiru v. Holder, 705 F. 3d 258, 264 (CA7 2013); Vinh Tan Nguyen v. Holder, 763 F. 3d 1022, 1029 (CA9 2014). In light of the Circuit split on this important question of federal law, we granted certiorari. 589 U. S. ___ (2019). II When a noncitizen is removable because he committed a crime specified in §1252(a)(2)(C), immigration law bars judicial review of the noncitizen’s factual challenges to his final order of removal. In the Government’s view, the law also bars judicial review of the noncitizen’s factual challenges to a CAT order. Nasrallah disagrees. We conclude that Nasrallah has the better of the statutory argument. A We begin by describing the three interlocking statutes that provide for judicial review of final orders of removal and CAT orders. The first relevant statute is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That Act authorizes noncitizens to obtain direct \"review of a final order of removal\" in a court of appeals. 110 Stat. 3009–607, 8 U. S. C. §1252(a)(1). As the parties agree, in the deportation context, a \"final order of removal\" is a final order \"concluding that the alien is deportable or ordering deportation.\" §1101(a)(47)(A); see §309(d)(2), 110 Stat. 3009–627; Calcano-Martinez v. INS, 533 U. S. 348, 350, n. 1 (2001). The Act also states that judicial review \"of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.\" 8 U. S. C. §1252(b)(9); see 110 Stat. 3009–610. In other words, a noncitizen’s various challenges arising from the removal proceeding must be \"consolidated in a petition for review and considered by the courts of appeals.\" INS v. St. Cyr, 533 U. S. 289, 313, and n. 37 (2001). By consolidating the issues arising from a final order of removal, eliminating review in the district courts, and supplying direct review in the courts of appeals, the Act expedites judicial review of final orders of removal. The second relevant statute is the Foreign Affairs Reform and Restructuring Act of 1998, known as FARRA. FARRA implements Article 3 of the international Convention Against Torture, known as CAT. As relevant here, CAT prohibits removal of a noncitizen to a country where the noncitizen likely would be tortured. Importantly for present purposes, §2242(d) of FARRA provides for judicial review of CAT claims \"as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U. S. C. 1252).\" 112 Stat. 2681–822, note following 8 U. S. C. §1231. The third relevant statute is the REAL ID Act of 2005. As relevant here, that Act responded to this Court’s 2001 decision in St. Cyr. In St. Cyr, this Court ruled that the 1996 Act, although purporting to eliminate district court review of final orders of removal, did not eliminate district court review via habeas corpus of constitutional or legal challenges to final orders of removal. 533 U. S., at 312–313. The REAL ID Act clarified that final orders of removal may not be reviewed in district courts, even via habeas corpus, and may be reviewed only in the courts of appeals. See 119 Stat. 310, 8 U. S. C. §1252(a)(5). The REAL ID Act also provided that CAT orders likewise may not be reviewed in district courts, even via habeas corpus, and may be reviewed only in the courts of appeals. See 119 Stat. 310, 8 U. S. C. §1252(a)(4). B Those three Acts establish that CAT orders may be reviewed together with final orders of removal in a court of appeals. But judicial review of final orders of removal is somewhat limited in cases (such as Nasrallah’s) involving noncitizens convicted of crimes specified in §1252(a)(2)(C). In those cases, a court of appeals may review constitutional or legal challenges to a final order of removal, but the court of appeals may not review factual challenges to a final order of removal. §§1252(a)(2)(C)–(D); see Guerrero-Lasprilla v. Barr, 589 U. S. ___, ___–___ (2020) (slip op., at 11–13). The question in this case is the following: By precluding judicial review of factual challenges to final orders of removal, does the law also preclude judicial review of factual challenges to CAT orders? We conclude that it does not. The relevant statutory text precludes judicial review of factual challenges to final orders of removal—and only to final orders of removal. In the deportation context, a final \"order of removal\" is a final order \"concluding that the alien is deportable or ordering deportation.\" §1101(a)(47)(A).4 A CAT order is not itself a final order of removal because it is not an order \"concluding that the alien is deportable or ordering deportation.\" As the Government acknowledges a CAT order does not disturb the final order of removal. Brief for Respondent 26. An order granting CAT relief means only that, notwithstanding the order of removal, the noncitizen may not be removed to the designated country of removal, at least until conditions change in that country. But the noncitizen still \"may be removed at any time to another country where he or she is not likely to be tortured.\" 8 CFR §§1208.17(b)(2), 1208.16(f). Even though CAT orders are not the same as final orders of removal, a question remains: Do CAT orders merge into final orders of removal in the same way as, say, an immigration judge’s evidentiary rulings merge into final orders of removal? The answer is no. For purposes of this statute, final orders of removal encompass only the rulings made by the immigration judge or Board of Immigration Appeals that affect the validity of the final order of removal. As this Court phrased it in INS v. Chadha, review of a final order of removal \"includes all matters on which the validity of the final order is contingent.\" 462 U. S. 919, 938 (1983) (internal quotation marks omitted). The rulings that affect the validity of the final order of removal merge into the final order of removal for purposes of judicial review. But the immigration judge’s or the Board’s ruling on a CAT claim does not affect the validity of the final order of removal and therefore does not merge into the final order of removal. To be sure, as noted above, FARRA provides that a CAT order is reviewable \"as part of the review of a final order of removal\" under 8 U. S. C. §1252. §2242(d), 112 Stat. 2681– 822; see also 8 U. S. C. §1252(a)(4). Likewise, §1252(b)(9) provides that \"[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.\" §1252(b)(9). But FARRA and §1252(b)(9) simply establish that a CAT order may be reviewed together with the final order of removal, not that a CAT order is the same as, or affects the validity of, a final order of removal. Consider an analogy. Suppose a statute furnishes appellate review of convictions and sentences in a single appellate proceeding. Suppose that the statute also precludes appellate review of certain factual challenges to the sentence. Would that statute bar appellate review of factual challenges to the conviction, just because the conviction and sentence are reviewed together? No. The same is true here. A CAT order may be reviewed together with the final order of removal. But a CAT order is distinct from a final order of removal and does not affect the validity of the final order of removal. The CAT order therefore does not merge into the final order of removal for purposes of §§1252(a)(2)(C)– (D)’s limitation on the scope of judicial review. In short, as a matter of straightforward statutory interpretation, Congress’s decision to bar judicial review of factual challenges to final orders of removal does not bar judicial review of factual challenges to CAT orders. It would be easy enough for Congress to preclude judicial review of factual challenges to CAT orders, just as Congress has precluded judicial review of factual challenges to certain final orders of removal. But Congress has not done so, and it is not the proper role of the courts to rewrite the laws passed by Congress and signed by the President. C Although a noncitizen may obtain judicial review of factual challenges to CAT orders, that review is highly deferential, as Nasrallah acknowledges. See Reply Brief 19–20; Tr. of Oral Arg. 5. The standard of review is the substantial-evidence standard: The agency’s \"findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.\" §1252(b)(4)(B); see Kenyeres v. Ashcroft, 538 U. S. 1301, 1306 (2003) (Kennedy, J., in chambers); INS v. Elias-Zacarias, 502 U. S. 478, 481, n. 1, 483–484 (1992). But the Government still insists that the statute supplies no judicial review of factual challenges to CAT orders. The Government advances a slew of arguments, but none persuades us. First, the Government raises an argument based on precedent. In Foti v. INS, 375 U. S. 217 (1963), this Court interpreted the statutory term \"final orders of deportation\" in the Immigration and Nationality Act of 1952, as amended in 1961, to encompass \"all determinations made during and incident to the administrative proceeding\" on removability. Id., at 229. The Government points out (correctly) that the Foti definition of a final order—if it still applied here— would cover CAT orders and therefore would bar judicial review of factual challenges to CAT orders. But Foti’s interpretation of the INA as it existed as of 1963 no longer applies. Since 1996, the INA has defined final \"order of deportation\" more narrowly than this Court interpreted the term in Foti. A final order of deportation is now defined as a final order \"concluding that the alien is deportable or ordering deportation.\" 8 U. S. C. §1101(a)(47)(A); Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1277; see §309(d)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009–627. And as we have explained, an order denying CAT relief does not fall within the statutory definition of an \"order of deportation\" because it is not an order \"concluding that the alien is deportable or ordering deportation.\" Therefore, Foti does not control here. Second, the Government puts forward a structural argument. As the Government sees it, if a CAT order is not merged into a final order of removal, then no statute would authorize a court of appeals to review a CAT order in the first place. That is because, in the Government’s view, the only statute that supplies judicial review of CAT claims is the statute that provides for judicial review of final of removal. See §1252(a)(1). The premise of that argument is incorrect. Section 2242(d) of FARRA, enacted in 1998, expressly provides for judicial review of CAT claims together with the review of final orders of removal. Moreover, as a result of the 2005 REAL ID Act, §1252(a)(4) now provides for direct review of CAT orders in the courts of appeals. See also 8 U. S. C. §1252(b)(9). In short, our decision does not affect the authority of the courts of appeals to review CAT orders. Third, the Government asserts a congressional intent argument: Why would Congress bar review of factual challenges to a removal order, but allow factual challenges to a CAT order? To begin with, we must adhere to the statutory text, which differentiates between the two kinds of orders for those purposes. In any event, Congress had good reason to distinguish the two. For noncitizens who have committed crimes that subject them to removal, the facts that rendered the noncitizen removable are often not in serious dispute. The relevant facts will usually just be the existence of the noncitizen’s prior criminal convictions. By barring review of factual challenges to final orders of removal, Congress prevented further relitigation of the underlying factual bases for those criminal convictions—a point that Senator Abraham, a key proponent of the statutory bar to judicial review, stressed back in 1996. See 142 Cong. Rec. 7348–7350 (1996). By contrast, the issues related to a CAT order will not typically have been litigated prior to the alien’s removal proceedings. Those factual issues may range from the noncitizen’s past experiences in the designated country of removal, to the noncitizen’s credibility, to the political or other current conditions in that country. Because the factual components of CAT orders will not previously have been litigated in court and because those factual issues may be critical to determining whether the noncitizen is likely to be tortured if returned, it makes some sense that Congress would provide an opportunity for judicial review, albeit deferential judicial review, of the factual components of a CAT order. Fourth, the Government advances a policy argument— that judicial review of the factual components of a CAT order would unduly delay removal proceedings. But today’s decision does not affect whether the noncitizen is entitled to judicial review of a CAT order and does not add a new layer of judicial review. All agree that a noncitizen facing removal under these provisions may already seek judicial review in a court of appeals of constitutional and legal claims relating to both the final order of removal and the CAT order. Our holding today means only that, in that same case in the court of appeals, the court may also review the noncitizen’s factual challenges to the CAT order under the deferential substantial-evidence standard. For many years, the Seventh and Ninth Circuits have allowed factual challenges to CAT orders, and the Government has not informed this Court of any significant problems stemming from review in those Circuits. Fifth, what about the slippery slope? If factual challenges to CAT orders may be reviewed, what other orders will now be subject to factual challenges in the courts of appeals? Importantly, another jurisdiction-stripping provision, §1252(a)(2)(B), states that a noncitizen may not bring a factual challenge to orders denying discretionary relief, including cancellation of removal, voluntary departure, adjustment of status, certain inadmissibility waivers, and other determinations \"made discretionary by statute.\" Kucana v. Holder, 558 U. S. 233, 248 (2010). Our decision today therefore has no effect on judicial review of those discretionary determinations. The Government suggests that our decision here might lead to judicial review of factual challenges to statutory withholding orders. A statutory withholding order prevents the removal of a noncitizen to a country where the noncitizen’s \"life or freedom would be threatened\" because of the noncitizen’s \"race, religion, nationality, membership in a particular social group, or political opinion.\" 8 U. S. C. §1231(b)(3)(A). That question is not presented in this case, and we therefore leave its resolution for another day. In cases where a noncitizen has committed a crime specified in 8 U. S. C. §1252(a)(2)(C), §§1252(a)(2)(C) and (D) preclude judicial review of the noncitizen’s factual challenges to a final order of removal. A CAT order is distinct from a final order of removal and does not affect the validity of a final order of removal. Therefore, §§1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order. We reverse the judgment of the U. S. Court of Appeals for the Eleventh Circuit."},
{"docket_number": "17-1712", "syllabus": "Plaintiffs James Thole and Sherry Smith are retired participants in U. S. Bank’s defined-benefit retirement plan, which guarantees them a fixed payment each month regardless of the plan’s value or its fiduciaries’ good or bad investment decisions. Both have been paid all of their monthly pension benefits so far and are legally and contractually entitled to those payments for the rest of their lives. Nevertheless, they filed a putative class-action suit against U. S. Bank and others (collectively, U. S. Bank) under the Employee Retirement Income Security Act of 1974 (ERISA), alleging that the defendants violated ERISA’s duties of loyalty and prudence by poorly investing the plan’s assets. They request the repayment of approximately $750 million to the plan in losses suffered due to mismanagement; injunctive relief, including replacement of the plan’s fiduciaries; and attorney’s fees. The District Court dismissed the case, and the Eighth Circuit affirmed on the ground that the plaintiffs lack statutory standing. Held: Because Thole and Smith have no concrete stake in the lawsuit, they lack Article III standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561. Win or lose, they would still receive the exact same monthly benefits they are already entitled to receive. None of the plaintiffs’ arguments suffices to establish Article III standing. First, the plaintiffs rely on a trust analogy in arguing that an ERISA participant has an equitable or property interest in the plan and that injuries to the plan are therefore injuries to the participants. But participants in a defined-benefit plan are not similarly situated to the beneficiaries of a private trust or to participants in a definedcontribution plan, and they possess no equitable or property interest in the plan, see Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 439–441. Second, the plaintiffs cannot assert representative standing based on injuries to the plan where they themselves have not \"suffered an injury in fact,\" Hollingsworth v. Perry, 570 U. S. 693, 708, or been legally or contractually appointed to represent the plan. Third, the fact that ERISA affords all participants—including defined-benefit plan participants—a cause of action to sue does not satisfy the injury-in-fact requirement here. \"Article III standing requires a concrete injury even in the context of a statutory violation.\" Spokeo, Inc. v. Robins, 578 U. S. ___, ___. Fourth, the plaintiffs contend that meaningful regulation of plan fiduciaries is possible only if they may sue to target perceived fiduciary misconduct. But this Court has long rejected that argument for Article III standing, see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 489, and defined-benefit plans are regulated and monitored in multiple ways. The plaintiffs’ amici assert that defined-benefit plan participants have standing to sue if the plan’s mismanagement was so egregious that it substantially increased the risk that the plan and the employer would fail and be unable to pay the participants’ future benefits. The plaintiffs do not assert that theory of standing here, nor did their complaint allege that level of mismanagement. Pp. 2–8. 873 F. 3d 617, affirmed.", "opinion": "To establish standing under Article III of the Constitution, a plaintiff must demonstrate (1) that he or she suffered an injury in fact that is concrete, particularized, and actual or imminent, (2) that the injury was caused by the defendant, and (3) that the injury would likely be redressed by the requested judicial relief. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992). Plaintiffs James Thole and Sherry Smith are two retired participants in U. S. Bank’s retirement plan. Of decisive importance to this case, the plaintiffs’ retirement plan is a defined-benefit plan, not a defined-contribution plan. In a defined-benefit plan, retirees receive a fixed payment each month, and the payments do not fluctuate with the value of the plan or because of the plan fiduciaries’ good or bad investment decisions. By contrast, in a defined-contribution plan, such as a 401(k) plan, the retirees’ benefits are typically tied to the value of their accounts, and the benefits can turn on the plan fiduciaries’ particular investment decisions. See Beck v. PACE Int’l Union, 551 U. S. 96, 98 (2007); Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 439–440 (1999). As retirees and vested participants in U. S. Bank’s defined-benefit plan, Thole receives $2,198.38 per month, and Smith receives $42.26 per month, regardless of the plan’s value at any one moment and regardless of the investment decisions of the plan’s fiduciaries. Thole and Smith have been paid all of their monthly pension benefits so far, and they are legally and contractually entitled to receive those same monthly payments for the rest of their lives. Even though the plaintiffs have not sustained any monetary injury, they filed a putative class-action suit against U. S. Bank and others (collectively, U. S. Bank) for alleged mismanagement of the defined-benefit plan. The alleged mismanagement occurred more than a decade ago, from 2007 to 2010. The plaintiffs sued under ERISA, the aptly named Employee Retirement Income Security Act of 1974, 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq. The plaintiffs claimed that the defendants violated ERISA’s duties of loyalty and prudence by poorly investing the assets of the plan. The plaintiffs requested that U. S. Bank repay the plan approximately $750 million in losses that the plan allegedly suffered. The plaintiffs also asked for injunctive relief, including replacement of the plan’s fiduciaries. See ERISA §§502(a)(2), (3), 29 U. S. C. §§1132(a)(2), (3). No small thing, the plaintiffs also sought attorney’s fees. In the District Court, the plaintiffs’ attorneys requested at least $31 million in attorney’s fees. The U. S. District Court for the District of Minnesota dismissed the case, and the U. S. Court of Appeals for the Eighth Circuit affirmed on the ground that the plaintiffs lack statutory standing. 873 F. 3d 617 (2017). We granted certiorari. 588 U. S. ___ (2019). We affirm the judgment of the U. S. Court of Appeals for the Eighth Circuit on the ground that the plaintiffs lack Article III standing. Thole and Smith have received all of their monthly benefit payments so far, and the outcome of this suit would not affect their future benefit payments. If Thole and Smith were to lose this lawsuit, they would still receive the exact same monthly benefits that they are already slated to receive, not a penny less. If Thole and Smith were to win this lawsuit, they would still receive the exact same monthly benefits that they are already slated to receive, not a penny more. The plaintiffs therefore have no concrete stake in this lawsuit. To be sure, their attorneys have a stake in the lawsuit, but an \"interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.\" Lewis v. Continental Bank Corp., 494 U. S. 472, 480 (1990); see Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 107 (1998) (same). Because the plaintiffs themselves have no concrete stake in the lawsuit, they lack Article III standing. If Thole and Smith had not received their vested pension benefits, they would of course have Article III standing to sue and a cause of action under ERISA §502(a)(1)(B) to recover the benefits due to them. See 29 U. S. C. §1132(a)(1)(B). But Thole and Smith have received all of their monthly pension benefits so far, and they will receive those same monthly payments for the rest of their lives. To nonetheless try to demonstrate their standing to challenge alleged plan mismanagement, the plaintiffs have advanced four alternative arguments. First, analogizing to trust law, Thole and Smith contend that an ERISA defined-benefit plan participant possesses an equitable or property interest in the plan, meaning in essence that injuries to the plan are by definition injuries to the plan participants. Thole and Smith contend, in other words, that a plan fiduciary’s breach of a trust-law duty of prudence or duty of loyalty itself harms ERISA defined-benefit plan participants, even if the participants themselves have not suffered (and will not suffer) any monetary losses. The basic flaw in the plaintiffs’ trust-based theory of standing is that the participants in a defined-benefit plan are not similarly situated to the beneficiaries of a private trust or to the participants in a defined-contribution plan. See Varity Corp. v. Howe, 516 U. S. 489, 497 (1996) (trust law informs but does not control interpretation of ERISA). In the private trust context, the value of the trust property and the ultimate amount of money received by the beneficiaries will typically depend on how well the trust is managed, so every penny of gain or loss is at the beneficiaries’ risk. By contrast, a defined-benefit plan is more in the nature of a contract. The plan participants’ benefits are fixed and will not change, regardless of how well or poorly the plan is managed. The benefits paid to the participants in a defined-benefit plan are not tied to the value of the plan. Moreover, the employer, not plan participants, receives any surplus left over after all of the benefits are paid; the employer, not plan participants, is on the hook for plan shortfalls. See Beck, 551 U. S., at 98–99. As this Court has stated before, plan participants possess no equitable or property interest in the plan. See Hughes Aircraft Co., 525 U. S., at 439–441; see also LaRue v. DeWolff, Boberg & Associates, Inc., 552 U. S. 248, 254–256 (2008). The trust-law analogy therefore does not fit this case and does not support Article III standing for plaintiffs who allege mismanagement of a defined-benefit plan. Second, Thole and Smith assert standing as representatives of the plan itself. But in order to claim \"the interests of others, the litigants themselves still must have suffered an injury in fact, thus giving\" them \"a sufficiently concrete interest in the outcome of the issue in dispute.\" Hollingsworth v. Perry, 570 U. S. 693, 708 (2013) (internal quotation marks omitted); cf. Gollust v. Mendell, 501 U. S. 115, 125–126 (1991) (suggesting that shareholder must \"maintain some continuing financial stake in the litigation\" in order to have Article III standing to bring an insider trading suit on behalf of the corporation); Craig v. Boren, 429 U. S. 190, 194–195 (1976) (vendor who \"independently\" suffered an Article III injury in fact could then assert the rights of her customers). The plaintiffs themselves do not have a concrete stake in this suit. The plaintiffs point to the Court’s decisions upholding the Article III standing of assignees—that is, where a party’s right to sue has been legally or contractually assigned to another party. But here, the plan’s claims have not been legally or contractually assigned to Thole or Smith. Cf. Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269, 290 (2008); Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 771–774 (2000) (qui tam statute makes a relator a partial assignee and \"gives the relator himself an interest in the lawsuit\") (emphasis deleted). The plaintiffs’ invocation of cases involving guardians, receivers, and executors falls short for basically the same reason. The plaintiffs have not been legally or contractually appointed to represent the plan. Third, in arguing for standing, Thole and Smith stress that ERISA affords the Secretary of Labor, fiduciaries, beneficiaries, and participants—including participants in a defined-benefit plan—a general cause of action to sue for restoration of plan losses and other equitable relief. See ERISA §§502(a)(2), (3), 29 U. S. C. §§1132(a)(2), (3). But the cause of action does not affect the Article III standing analysis. This Court has rejected the argument that \"a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.\" Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 9); see Raines v. Byrd, 521 U. S. 811, 820, n. 3 (1997). The Court has emphasized that \"Article III standing requires a concrete injury even in the context of a statutory violation.\" Spokeo, 578 U. S., at ___ (slip op., at 9). Here, the plaintiffs have failed to plausibly and clearly allege a concrete injury. Fourth, Thole and Smith contend that if defined-benefit plan participants may not sue to target perceived fiduciary misconduct, no one will meaningfully regulate plan fiduciaries. For that reason, the plaintiffs suggest that defined-benefit plan participants must have standing to sue. But this Court has long rejected that kind of argument for Article III standing. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 489 (1982) (the \"‘assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing’\") (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 227 (1974)). In any event, the argument rests on a faulty premise in this case because defined-benefit plans are regulated and monitored in multiple ways. To begin with, employers and their shareholders often possess strong incentives to root out fiduciary misconduct because the employers are entitled to the plan surplus and are often on the hook for plan shortfalls. Therefore, about the last thing a rational employer wants or needs is a mismanaged retirement plan. Cf. ERISA §4062(a), 29 U. S. C. §1362(a). Moreover, ERISA expressly authorizes the Department of Labor to enforce ERISA’s fiduciary obligations. See ERISA §502(a)(2), 29 U. S. C. §1132(a)(2). And the Department of Labor has a substantial motive to aggressively pursue fiduciary misconduct, particularly to avoid the financial burden of failed defined-benefit plans being backloaded onto the Federal Government. When a defined-benefit plan fails and is unable to pay benefits to retirees, the federal Pension Benefit Guaranty Corporation is required by law to pay the vested pension benefits of the retirees, often in full. The Department of Labor is well positioned to understand the relationship between plan failure and the PBGC because, by law, the PBGC operates within the Department of Labor, and the Secretary of Labor chairs the Board of the PBGC. See ERISA §§4002(a), (d), 29 U. S. C. §§1302(a), (d). On top of all that, fiduciaries (including trustees who are fiduciaries) can sue other fiduciaries—and they would have good reason to sue if, as Thole and Smith posit, one fiduciary were using the plan’s assets as a \"personal piggybank.\" Brief for Petitioners 2. In addition, depending on the nature of the fiduciary misconduct, state and federal criminal laws may apply. See, e.g., 18 U. S. C. §§664, 1954; ERISA §514(b)(4), 29 U. S. C. §1144(b)(4). In short, under ERISA, fiduciaries who manage defined-benefit plans face a regulatory phalanx. In sum, none of the plaintiffs’ four theories supports their Article III standing in this case. One last wrinkle remains. According to the plaintiffs’ amici, plan participants in a defined-benefit plan have standing to sue if the mismanagement of the plan was so egregious that it substantially increased the risk that the plan and the employer would fail and be unable to pay the participants’ future pension benefits. Cf. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013); Lee v. Verizon Communications, Inc., 837 F. 3d 523, 545–546 (CA5 2016); David v. Alphin, 704 F. 3d 327, 336–338 (CA4 2013). But the plaintiffs do not assert that theory of standing in this Court. In any event, the plaintiffs’ complaint did not plausibly and clearly claim that the alleged mismanagement of the plan substantially increased the risk that the plan and the employer would fail and be unable to pay the plaintiffs’ future pension benefits. It is true that the plaintiffs’ complaint alleged that the plan was underfunded for a period of time. But a bare allegation of plan underfunding does not itself demonstrate a substantially increased risk that the plan and the employer would both fail. Cf. LaRue, 552 U. S., at 255 (\"Misconduct by the administrators of a defined benefit plan will not affect an individual’s entitlement to a defined benefit unless it creates or enhances the risk of default by the entire plan\"). Courts sometimes make standing law more complicated than it needs to be. There is no ERISA exception to Article III. And under ordinary Article III standing analysis, the plaintiffs lack Article III standing for a simple, commonsense reason: They have received all of their vested pension benefits so far, and they are legally entitled to receive the same monthly payments for the rest of their lives. Winning or losing this suit would not change the plaintiffs’ monthly pension benefits. The plaintiffs have no concrete stake in this dispute and therefore lack Article III standing. We affirm the judgment of the U. S. Court of Appeals for the Eighth Circuit."},
{"docket_number": "18-6943", "syllabus": "Federal Rule of Civil Procedure 59(e) allows a litigant to file a motion to alter or amend a district court’s judgment within 28 days from the entry of judgment, with no possibility of an extension. The Rule enables a district court to \"rectify its own mistakes in the period immediately following\" its decision, White v. New Hampshire Dept. of Employment Security, 455 U. S. 445, 450, but not to address new arguments or evidence that the moving party could have raised before the decision. A timely filed motion suspends the finality of the original judgment for purposes of appeal, and only the district court’s disposition of the motion restores finality and starts the 30-day appeal clock. If an appeal follows, the ruling on the motion merges with the original determination into a single judgment. Title 28 U. S. C. §2244(b), the so-called gatekeeping provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), governs federal habeas proceedings. Under AEDPA, a state prisoner is entitled to one fair opportunity to seek federal habeas relief from his conviction. Section 2244(b), however, sets stringent limits on second or successive habeas applications. Among those restrictions, a prisoner may not reassert any claims \"presented in a prior application,\" §2244(b)(1), and may bring a new claim only in limited situations. Because habeas proceedings are civil in nature, the Federal Rules of Civil Procedure generally apply, but statutory habeas restrictions, including §2244(b), trump any \"inconsistent\" Rule. §2254 Rule 12. Petitioner Gregory Banister was convicted by a Texas court of aggravated assault and sentenced to 30 years in prison. After exhausting his state remedies, he filed for federal habeas relief, which the District Court denied. Banister timely filed a Rule 59(e) motion, which the District Court also denied. He then filed a notice of appeal in accordance with the timeline for appealing a judgment after the denial of a Rule 59(e) motion. But the Fifth Circuit construed Banister’s Rule 59(e) motion as a successive habeas petition and dismissed his appeal as untimely. Held: Because a Rule 59(e) motion to alter or amend a habeas court’s judgment is not a second or successive habeas petition under 28 U. S. C. §2244(b), Banister’s appeal was timely. Pp. 5–16. (a) The phrase \"second or successive application\" is a term of art and does not \"simply ‘refe[r]’ \" to all habeas filings made \" ‘second or successively in time,’ \" following an initial application. Magwood v. Patterson, 561 U. S. 320, 332. In addressing what qualifies as second or successive, this Court has looked to historical habeas doctrine and practice and AEDPA’s purposes. Here, both point toward permitting Rule 59(e) motions in habeas proceedings. Prior to AEDPA, the Court held in Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257, that Rule 59(e) applied in habeas proceedings. The Rule, the Court recounted, derived from courts’ common-law power \"to alter or amend [their] own judgments during[ ] the term of court in which [they were] rendered,\" prior to any appeal, including \"in habeas corpus cases.\" Id., at 270. Although the drafters of the Federal Rules eventually replaced the \"term of court\" power with Rule 59(e), the Court concluded that this did nothing to narrow the set of judgments amenable to alteration. The record of judicial decisions accords with that view. Pre-AEDPA, habeas courts were to dismiss repetitive applications except in \"rare case[s].\" Kuhlmann v. Wilson, 477 U. S. 436, 451. Yet in the half century from Rule 59(e)’s adoption through Browder to AEDPA’s enactment, there exists only one dismissal of a Rule 59(e) motion as impermissibly successive. In all other cases, the district courts resolved Rule 59(e) motions on the merits. Congress passed AEDPA against this backdrop, and gave no indication that it meant to change what qualifies as a successive application. Nor do AEDPA’s purposes of reducing delay, conserving judicial resources, and promoting finality suggest any different result. Rule 59(e) offers a narrow, 28-day window to ask for relief; limits requests for reconsideration to matters properly raised in the challenged judgment; and consolidates proceedings by producing a single final judgment for appeal. Indeed, the Rule may make habeas proceedings more efficient by enabling a district court to reverse a mistaken judgment or to clarify its reasoning so as to make an appeal unnecessary. Pp. 5– 12. (b) Gonzalez v. Crosby, 545 U. S. 524, which held that a Rule 60(b) motion counts as a second or successive habeas application if it \"attacks the federal court’s previous resolution of a claim on the merits,\" id., at 532, does not alter that conclusion. Rule 60(b) differs from Rule 59(e) in just about every way that matters here. Whereas Rule 59(e) derives from a common-law court’s plenary power to revise its judgment before anyone could appeal, Rule 60(b) codifies various writs used to collaterally attack a court’s already completed judgment. That distinction was not lost on pre-AEDPA habeas courts, which routinely dismissed Rule 60(b) motions for raising repetitive claims. Next, the Rules’ modern-day operations also diverge, with only Rule 60(b) undermining AEDPA’s scheme to prevent delay and protect finality. That is because a Rule 60(b) motion, which can arise long after the denial of a prisoner’s initial petition, generally goes beyond pointing out alleged errors in the just-issued decision. Still more, a Rule 60(b) motion \"does not affect the [original] judgment’s finality or suspend its operation\" and is appealable as \"a separate final order.\" Stone v. INS, 514 U. S. 386, 401. Left unchecked, a Rule 60(b) motion threatens serial habeas litigation, while a Rule 59(e) motion is a one-time effort to point out alleged errors in a just-issued decision before taking a single appeal. Pp. 12–16. Reversed and remanded.", "opinion": "A state prisoner is entitled to one fair opportunity to seek federal habeas relief from his conviction. But he may not usually make a \"second or successive habeas corpus application.\" 28 U. S. C. §2244(b). The question here is whether a motion brought under Federal Rule of Civil Procedure 59(e) to alter or amend a habeas court’s judgment qualifies as such a successive petition. We hold it does not. A Rule 59(e) motion is instead part and parcel of the first habeas proceeding. I This case is about two procedural rules. First, Rule 59(e) applies in federal civil litigation generally. (Habeas proceedings, for those new to the area, are civil in nature. See Fisher v. Baker, 203 U. S. 174, 181 (1906).) The Rule enables a party to request that a district court reconsider a justissued judgment. Second, the so-called gatekeeping provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), codified at 28 U. S. C. §2244(b), governs federal habeas proceedings. It sets stringent limits on second or successive habeas applications. We say a few words about each before describing how the courts below applied them here. A Rule 59(e) allows a litigant to file a \"motion to alter or amend a judgment.\"1 The time for doing so is short—28 days from entry of the judgment, with no possibility of an extension. See Fed. Rule Civ. Proc. 6(b)(2) (prohibiting extensions to Rule 59(e)’s deadline). The Rule gives a district court the chance \"to rectify its own mistakes in the period immediately following\" its decision. White v. New Hampshire Dept. of Employment Security, 455 U. S. 445, 450 (1982). In keeping with that corrective function, \"federal courts generally have [used] Rule 59(e) only\" to \"reconsider[] matters properly encompassed in a decision on the merits.\" Id., at 451. In particular, courts will not address new arguments or evidence that the moving party could have raised before the decision issued. See 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2810.1, pp. 163–164 (3d ed. 2012) (Wright & Miller); accord, Exxon Shipping Co. v. Baker, 554 U. S. 471, 485–486, n. 5 (2008) (quoting prior edition).2 The motion is therefore tightly tied to the underlying judgment. The filing of a Rule 59(e) motion within the 28-day period \"suspends the finality of the original judgment\" for purposes of an appeal. FCC v. League of Women Voters of Cal., 468 U. S. 364, 373, n. 10 (1984) (internal quotation marks and alterations omitted). Without such a motion, a litigant must take an appeal no later than 30 days from the district court’s entry of judgment. See Fed. Rule App. Proc. (FRAP) 4(a)(1)(A). But if he timely submits a Rule 59(e) motion, there is no longer a final judgment to appeal from. See Osterneck v. Ernst & Whinney, 489 U. S. 169, 174 (1989). Only the disposition of that motion \"restores th[e] finality\" of the original judgment, thus starting the 30-day appeal clock. League of Women Voters, 468 U. S., at 373, n. 10 (internal quotation marks omitted); see FRAP 4(a)(4)(A)(iv) (A party’s \"time to file an appeal runs\" from \"the entry of the order disposing of the [Rule 59(e)] motion\"). And if an appeal follows, the ruling on the Rule 59(e) motion merges with the prior determination, so that the reviewing court takes up only one judgment. See 11 Wright & Miller §2818, at 246; Foman v. Davis, 371 U. S. 178, 181 (1962). The court thus addresses any attack on the Rule 59(e) ruling as part of its review of the underlying decision. Now turn to §2244(b)’s restrictions on second or successive habeas petitions. Under AEDPA, a state prisoner always gets one chance to bring a federal habeas challenge to his conviction. See Magwood v. Patterson, 561 U. S. 320, 333–334 (2010). But after that, the road gets rockier. To file a second or successive application in a district court, a prisoner must first obtain leave from the court of appeals based on a \"prima facie showing\" that his petition satisfies the statute’s gatekeeping requirements. 28 U. S. C. §2244(b)(3)(C). Under those provisions, which bind the district court even when leave is given, a prisoner may not reassert any claims \"presented in a prior application.\" §2244(b)(1). And he may bring a new claim only if it falls within one of two narrow categories—roughly speaking, if it relies on a new and retroactive rule of constitutional law or if it alleges previously undiscoverable facts that would establish his innocence. See §2244(b)(2). Still more: Those restrictions, like all statutes and rules pertaining to habeas, trump any \"inconsistent\" Federal Rule of Civil Procedure otherwise applicable to habeas proceedings. 28 U. S. C. §2254 Rule 12. B This case began when, nearly two decades ago, petitioner Gregory Banister struck and killed a bicyclist while driving a car. Texas charged him with the crime of aggravated assault with a deadly weapon. A jury found him guilty, and he was sentenced to 30 years in prison. State courts upheld the conviction on direct appeal and in collateral proceedings. Banister then turned to federal district court for habeas relief. Although raising many claims, his petition mainly argued that his trial and appellate counsel provided him with constitutionally ineffective assistance. The District Court disagreed and entered judgment denying the application. At that point, Banister timely filed a Rule 59(e) motion asking the District Court to alter its judgment. Consistent with the Rule’s corrective purpose, Banister urged the court to fix what he saw as \"manifest errors of law and fact.\" App. 219. Five days later and without requiring a response from the State, the court issued a one-paragraph order explaining that it had reviewed all relevant materials and stood by its decision. See id., at 254. In accordance with the timeline for appealing a judgment after the denial of a Rule 59(e) motion, see supra, at 3, Banister then filed a notice of appeal (along with a request for a certificate of appealability) to challenge the District Court’s rejection of his habeas application. Yet the Court of Appeals for the Fifth Circuit dismissed the appeal as untimely. That ruling rested on the view that Banister’s Rule 59(e) motion, although captioned as such, was not really a Rule 59(e) motion at all. Because it \"attack[ed] the federal court’s previous resolution of [his] claim on the merits,\" the Fifth Circuit held that the motion must be \"construed as a successive habeas petition.\" App. 305 (internal quotation marks omitted). In any future case, that holding would prohibit a habeas court from considering claims made in a self-styled Rule 59(e) motion except in rare circumstances—that is, when a court of appeals gave permission and the claim fell within one of §2244(b)’s two slender categories. See supra, at 3. In Banister’s own case, that bar was of no moment because the District Court had already addressed his motion’s merits. But viewing a Rule 59(e) motion as a successive habeas petition also had another consequence, and this one would affect him. Unlike a Rule 59(e) motion, the Court of Appeals noted, a successive habeas application does not postpone the time to file an appeal. That meant the clock started ticking when the District Court denied Banister’s habeas application (rather than his subsequent motion)—and so Banister’s appeal was several weeks late. We granted certiorari to resolve a Circuit split about whether a Rule 59(e) motion to alter or amend a habeas court’s judgment counts as a second or successive habeas application. 588 U. S. ___ (2019). We hold it does not, and reverse. II This case requires us to choose between two rules—more specifically, to decide whether AEDPA’s §2244(b) displaces Rule 59(e) in federal habeas litigation. The Federal Rules of Civil Procedure generally govern habeas proceedings. See Fed. Rule Civ. Proc. 81(a)(4). They give way, however, if and to the extent \"inconsistent with any statutory provisions or [habeas-specific] rules.\" 28 U. S. C. §2254 Rule 12; see supra, at 3–4. Here, the Fifth Circuit concluded and Texas now contends that AEDPA’s limitation of repetitive habeas applications conflicts with Rule 59(e)’s ordinary operation. That argument in turn hinges on viewing a Rule 59(e) motion in a habeas case as a \"second or successive application.\" §2244(b); see Brief for Respondent 10. If such a motion constitutes a second or successive petition, then all of §2244(b)’s restrictions kick in—limiting the filings Rule 59(e) would allow. But if a Rule 59(e) motion is not so understood—if it is instead part of resolving a prisoner’s first habeas application—then §2244(b)’s requirements never come into the picture. The phrase \"second or successive application,\" on which all this rides, is a \"term of art,\" which \"is not self-defining.\" Slack v. McDaniel, 529 U. S. 473, 486 (2000); Panetti v. Quarterman, 551 U. S. 930, 943 (2007). We have often made clear that it does not \"simply ‘refer’ \" to all habeas filings made \"‘second or successively in time,’\" following an initial application. Magwood, 561 U. S., at 332 (quoting Panetti, 551 U. S., at 944 (alteration omitted)). For example, the courts of appeals agree (as do both parties) that an amended petition, filed after the initial one but before judgment, is not second or successive. See 2 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure §28.1, pp. 1656–1657, n. 4 (7th ed. 2017) (collecting cases); Brief for Petitioner 20–21; Brief for Respondent 16. So too, appeals from the habeas court’s judgment (or still later petitions to this Court) are not second or successive; rather, they are further iterations of the first habeas application.3 Chronology here is by no means all. In addressing what qualifies as second or successive, this Court has looked for guidance in two main places. First, we have explored historical habeas doctrine and practice. The phrase \"second or successive application,\" we have explained, is \"given substance in our prior habeas corpus cases,\" including those \"predating [AEDPA’s] enactment.\" Slack, 529 U. S., at 486; Panetti, 551 U. S., at 944; see id., at 943 (stating that the phrase \"takes its full meaning from our case law\"). In particular, we have asked whether a type of later-in-time filing would have \"constituted an abuse of the writ, as that concept is explained in our [pre-AEDPA] cases.\" Id., at 947. If so, it is successive; if not, likely not. Second, we have considered AEDPA’s own purposes. The point of §2244(b)’s restrictions, we have stated, is to \"conserve judicial resources, reduc[e] piecemeal litigation,\" and \"lend[] finality to state court judgments within a reasonable time.\" Id., at 945–946 (internal quotation marks omitted). With those goals in mind, we have considered \"the implications for habeas practice\" of allowing a type of filing, to assess whether Congress would have viewed it as successive. Stewart v. Martinez-Villareal, 523 U. S. 637, 644 (1998). Here, both historical precedents and statutory aims point in the same direction—toward permitting Rule 59(e) motions in habeas proceedings. And nothing cuts the opposite way. A This Court has already held that history supports a habeas court’s consideration of a Rule 59(e) motion. In Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257 (1978), we addressed prior to AEDPA \"the applicability of Federal Rule [59(e)] in habeas corpus proceedings.\" Id., at 258. In deciding that the Rule applied in habeas—that \"a prompt motion for reconsideration\" was \"thoroughly consistent\" with habeas law and \"well suited to the special problems and character of [habeas] proceedings\"—we mainly looked to historical practice. Id., at 271 (internal quotation marks omitted). Rule 59(e), we recounted, derived from a court’s common-law power \"to alter or amend its own judgments during[] the term of court in which [they were] rendered,\" prior to any appeal. Id., at 270; see Zimmern v. United States, 298 U. S. 167, 169–170 (1936) (\"The judge had plenary power while the term was in existence to modify his judgment [or] revoke it altogether\").4 Courts exercised that authority, we explained, \"in habeas corpus cases\" just as \"in other civil proceedings.\" Browder, 434 U. S., at 270. In 1946, the drafters of the Federal Rules replaced the \"term of court\" power with Rule 59(e), thus prescribing a set number of days (then 10, now 28) in which a party could move to amend a judgment. See id., at 271. But in our view, that change did nothing to narrow the set of judgments amenable to alteration. See id., at 270–271. After Rule 59(e), just as before, a district court could \"reconsider the grant or denial of habeas corpus relief \" in the same way it could review any other decision. Id., at 270; see id., at 271. A timely Rule 59(e) motion, we held, \"suspend[ed] the finality\" of any judgment, including one in habeas—thus enabling a district court to address the matter again. Id., at 267 (internal quotation marks omitted). The record of judicial decisions accords with Browder’s view of the use of Rule 59(e) in habeas practice. Before AEDPA, \"abuse-of-the-writ principles limit[ed] a [habeas applicant’s] ability to file repetitive petitions.\" McCleskey v. Zant, 499 U. S. 467, 483 (1991). That doctrine was more forgiving than AEDPA’s gatekeeping provision—for example, enabling courts to hear a second or successive petition if the \"ends of justice\" warranted doing so. Id., at 485. But the rule against repetitive litigation still had plenty of bite. It demanded the dismissal of successive applications except in \"rare case[s].\" Kuhlmann v. Wilson, 477 U. S. 436, 451 (1986) (plurality opinion). So if courts had viewed Rule 59(e) motions as successive, there should be lots of decisions dismissing them on that basis. But nothing of the kind exists. In the half century from Rule 59(e)’s adoption (1946) through Browder (1978) to AEDPA’s enactment (1996), we (and the parties) have found only one such dismissal. See Bannister v. Armontrout, 4 F. 3d 1434, 1445 (CA8 1993). In every other case, courts resolved Rule 59(e) motions on the merits—and without any comment about repetitive litigation. Mostly, courts denied the motions and adhered to their original judgments. See, e.g., Gajewski v. Stevens, 346 F. 2d 1000, 1001 (CA8 1965) (per curiam). Occasionally, courts decided they had erred in those decisions. See, e.g., York v. Tate, 858 F. 2d 322, 325 (CA6 1988) (per curiam). The win-loss rate is for this point irrelevant. What matters is that they all (but one) treated Rule 59(e) motions not as successive, but as attendant on the initial habeas application. Congress passed AEDPA against this legal backdrop, and did nothing to change it. AEDPA of course made the limits on entertaining second or successive habeas applications more stringent than before. See supra, at 3. But the statute did not redefine what qualifies as a successive petition, much less place Rule 59(e) motions in that category. Cf. Magwood, 561 U. S., at 336–337 (distinguishing between two questions: \"§2244(b)’s threshold inquiry into whether an application is ‘second or successive’ and its subsequent inquiry into whether [to dismiss] a successive application\"). When Congress \"intends to effect a change\" in existing law—in particular, a holding of this Court—it usually provides a clear statement of that objective. TC Heartland LLC v. Kraft Foods Group Brands LLC, 581 U. S. ___, ___ (2017) (slip op., at 8). AEDPA offers no such indication that Congress meant to change the historical practice Browder endorsed of applying Rule 59(e) in habeas proceedings. Nor do AEDPA’s purposes demand a change in that tradition. As explained earlier, AEDPA aimed to prevent serial challenges to a judgment of conviction, in the interest of reducing delay, conserving judicial resources, and promoting finality. See supra, at 7. Nothing in Rule 59(e)—a rule Browder described as itself \"based on an interest in speedy disposition and finality,\" 434 U. S., at 271 (internal quotation marks omitted)—conflicts with those goals. Recall everything said above about the Rule’s operation. See supra, at 2–3. To begin with, Rule 59(e) gives a prisoner only a narrow window to ask for relief—28 days, with no extensions. Next, a prisoner may invoke the rule only to request \"reconsideration of matters properly encompassed\" in the challenged judgment. White, 455 U. S., at 451. And \"reconsideration\" means just that: Courts will not entertain arguments that could have been but were not raised before the just-issued decision. A Rule 59(e) motion is therefore backward-looking; and because that is so, it maintains a prisoner’s incentives to consolidate all of his claims in his initial application. Yet more, the Rule consolidates appellate proceedings. A Rule 59(e) motion briefly suspends finality to enable a district court to fix any mistakes and thereby perfect its judgment before a possible appeal. The motion’s disposition then merges into the final judgment that the prisoner may take to the next level. In that way, the Rule avoids \"piecemeal appellate review.\" Osterneck, 489 U. S., at 177. Its operation, rather than allowing repeated attacks on a decision, helps produce a single final judgment for appeal. Indeed, the availability of Rule 59(e) may make habeas proceedings more efficient. Most obviously, the Rule enables a district court to reverse a mistaken judgment, and so make an appeal altogether unnecessary. See United States v. Ibarra, 502 U. S. 1, 5 (1991) (per curiam) (noting that giving district courts a short time to correct their own errors \"prevents unnecessary burdens being placed on the courts of appeals\"). Of course, Rule 59(e) motions seldom change judicial outcomes. But even when they do not, they give habeas courts the chance to clarify their reasoning or address arguments (often made in less-than-limpid pro se petitions) passed over or misunderstood before. See Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 12–20 (describing examples). That opportunity, too, promotes an economic and effective appellate process, as the reviewing court gets \"the benefit of the district court’s plenary findings.\" Osterneck, 489 U. S., at 177. And when a district court sees no need to change a decision, the costs of permitting a Rule 59(e) motion are typically slight. A judge familiar with a habeas applicant’s claims can usually make quick work of a meritless motion. This case may well provide an example: The District Court declined to make the State respond to Banister’s motion and decided it within five days. Nothing in such a process conflicts with AEDPA’s goal of streamlining habeas cases. The upshot, after AEDPA as before, is that Rule 59(e) motions are not second or successive petitions, but instead a part of a prisoner’s first habeas proceeding. In timing and substance, a Rule 59(e) motion hews closely to the initial application; and the habeas court’s disposition of the former fuses with its decision on the latter. Such a motion does not enable a prisoner to abuse the habeas process by stringing out his claims over the years. It instead gives the court a brief chance to fix mistakes before its (single) judgment on a (single) habeas application becomes final and thereby triggers the time for appeal. No surprise, then, that habeas courts historically entertained Rule 59(e) motions, rather than dismiss them as successive. Or that Congress said not a word about changing that familiar practice even when enacting other habeas restrictions. B Texas (along with the dissent) resists this conclusion on one main ground: this Court’s prior decision in Gonzalez v. Crosby, 545 U. S. 524 (2005). The question there was whether a Rule 60(b) motion for \"relie[f] from a final judgment\" denying habeas relief counts as a second or successive habeas application. Fed. Rule Civ. Proc. 60(b).6 We said that it does, so long as the motion \"attacks the federal court’s previous resolution of a claim on the merits.\" 545 U. S., at 532 (emphasis deleted).7 Texas thinks the \"Gonzalez principle applies with equal force to Rule 59(e) motions.\" Brief for Respondent 8. After all, the State argues, both Rule 59(e) and Rule 60(b) provide \"vehicles for asserting habeas claims\" after a district court has entered judgment denying relief. Id., at 2. And if Gonzalez does apply, Texas concludes, Banister must lose because (as everyone agrees) his Rule 59(e) motion pressed only merits-based claims. But Rule 60(b) differs from Rule 59(e) in just about every way that matters to the inquiry here. (Contra the dissent’s refrain, see post, at 1, 3, 5, 6, 10, 14, the variance goes far beyond their \"labels.\") Begin, again, with history. Recall that Rule 59(e) derives from a common-law court’s plenary power to revise its judgment during a single term of court, before anyone could appeal. See supra, at 7–8. By contrast, Rule 60(b) codifies various writs used to seek relief from a judgment at any time after the term’s expiration—even after an appeal had (long since) concluded. Those mechanisms did not (as the term rule did) aid the trial court to get its decision right in the first instance; rather, they served to collaterally attack its already completed judgment. See Advisory Committee’s 1946 Notes on Amendments to Fed. Rule Civ. Proc. 60; Mann, Note, History and Interpretation of Federal Rule 60(b), 25 Temp. L. Q. 77, 78 (1951). And that distinction was not lost on pre-AEDPA habeas courts applying the two rules. As discussed earlier, it is practically impossible to find a case dismissing a Rule 59(e) motion for raising repetitive claims. See supra, at 9. But decisions abound dismissing Rule 60(b) motions for that reason. See, e.g., Williamson v. Rison, 1993 WL 262632 (CA9, July 9, 1993); see also Brewer v. Ward, 1996 WL 194830, *1 (CA10, Apr. 22, 1996) (collecting cases from multiple Circuits). That is because those courts recognized Rule 60(b)—as contrasted to Rule 59(e)—as threatening an already final judgment with successive litigation.8 The modern-day operation of the two Rules also diverge, with only Rule 60(b) undermining AEDPA’s scheme to prevent delay and protect finality. Unlike Rule 59(e) motions with their fixed 28-day window, Rule 60(b) motions can arise long after the denial of a prisoner’s initial petition— depending on the reason given for relief, within either a year or a more open-ended \"reasonable time.\" Fed. Rule Civ. Proc. 60(c)(1). In Gonzalez itself, the prisoner made his motion nearly three years after the habeas court’s denial of relief, and more than one year after his appeal ended. See 545 U. S., at 527. Given that extended timespan, Rule 60(b) inevitably elicits motions that go beyond Rule 59(e)’s mission of pointing out the alleged errors in the habeas court’s decision. See, e.g., Lopez v. Douglas, 141 F. 3d 974, 975 (CA10 1998) (per curiam) (seeking relief in light of a Supreme Court decision issued a decade after judgment); Tyler v. Anderson, 749 F. 3d 499, 504–505 (CA6 2014) (seeking to raise claims that former counsel had neglected in a yearsold habeas application). Still more, the appeal of a Rule 60(b) denial is independent of the appeal of the original petition. Recall that a Rule 59(e) motion suspends the finality of the habeas judgment, and a decision on the former merges into the latter for appellate review. See supra, at 2–3, 10-11. By contrast, a Rule 60(b) motion \"does not affect the [original] judgment’s finality or suspend its operation.\" Fed. Rule Civ. Proc. 60(c)(2). And an appeal from the denial of Rule 60(b) relief \"does not bring up the underlying judgment for review.\" Browder, 434 U. S., at 263, n. 7. Instead, that denial is appealed as \"a separate final order.\" Stone v. INS, 514 U. S. 386, 401 (1995).9 In short, a Rule 60(b) motion differs from a Rule 59(e) motion in its remove from the initial habeas proceeding. A Rule 60(b) motion—often distant in time and scope and always giving rise to a separate appeal—attacks an already completed judgment. Its availability threatens serial habeas litigation; indeed, without rules suppressing abuse, a prisoner could bring such a motion endlessly. By contrast, a Rule 59(e) motion is a one-time effort to bring alleged errors in a just-issued decision to a habeas court’s attention, before taking a single appeal. It is a limited continuation of the original proceeding—indeed, a part of producing the final judgment granting or denying habeas relief. For those reasons, Gonzalez does not govern here. A Rule 59(e) motion, unlike a Rule 60(b) motion, does not count as a second or successive habeas application. III Our holding means that the Court of Appeals should not have dismissed Banister’s appeal as untimely. Banister properly brought a Rule 59(e) motion in the District Court. As noted earlier, the 30-day appeals clock runs from the disposition of such a motion, rather than from the initial entry of judgment. See supra, at 3. And Banister filed his notice of appeal within that time. The Fifth Circuit reached a contrary conclusion because it thought that Banister’s motion was really a second or successive habeas application, and so did not reset the appeals clock. For all the reasons we have given, that understanding of a Rule 59(e) motion is wrong. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."},
{"docket_number": "18-1334", "syllabus": "In 2016, in response to a fiscal crisis in Puerto Rico, Congress invoked its Article IV power to \"make all needful Rules and Regulations respecting the Territory . . . belonging to the United States,\" §3, cl. 2, to enact the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). PROMESA created a Financial Oversight and Management Board, whose seven voting members are to be appointed by the President without the Senate’s advice and consent. Congress authorized the Board to file for bankruptcy on behalf of Puerto Rico or its instrumentalities, to supervise and modify Puerto Rico’s laws and budget, and to gather evidence and conduct investigations in support of these efforts. After President Obama selected the Board’s members, the Board filed bankruptcy petitions on behalf of the Commonwealth and five of its entities. Both court and Board had decided a number of matters when several creditors moved to dismiss the proceedings on the ground that the Board members’ selection violated the Constitution’s Appointments Clause, which says that the President \"shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all . . . Officers of the United States . . . .\" Art. II, §2, cl. 2. The court denied the motions, but the First Circuit reversed. It held that the Board members’ selection violated the Appointments Clause but also concluded that any Board actions taken prior to its decision were valid under the \"de facto officer\" doctrine. Held: 1. The Appointments Clause constrains the appointments power as to all officers of the United States, even those who exercise power in or in relation to Puerto Rico. The Constitution’s structure provides strong reason to believe that this is so. The Appointments Clause reflects an allocation of responsibility, between President and Senate, in cases involving appointment to high federal office. Concerned about possible manipulation of appointments, the Founders both concentrated the appointment power and distributed it, ensuring that primary responsibility for important nominations would fall on the President while also ensuring that the Senate’s advice and consent power would provide a check on that power. Other, similar structural constraints in the Constitution apply to all exercises of federal power, including those related to Article IV entities. Cf., e.g., Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 270–271 (MWAA). The objectives advanced by the Appointments Clause counsel strongly in favor of applying that Clause to all officers of the United States, even those with powers and duties related to Puerto Rico. Indeed, the Clause’s text firmly indicates that it applies to the appointment of all \"Officers of the United States.\" And history confirms this reading. Congress’ longstanding practice of requiring the Senate’s advice and consent for territorial Governors with important federal duties supports the inference that Congress expected the Appointments Clause to apply to at least some officials with supervisory authority over the Territories. Pp. 5–9. 2. The Appointments Clause does not restrict the appointment or selection of the Board members. Pp. 9–21. (a) The Appointments Clause does not restrict the appointment of local officers that Congress vests with primarily local duties. The Clause’s language suggests a distinction between federal officers—who exercise power of the National Government—and nonfederal officers— who exercise power of some other government. Pursuant to Article I, §8, cl. 17, and Article IV, §3, Congress has long legislated for entities that are not States—the District of Columbia and the Territories. In so doing, Congress has both made local law directly and also created local government structures, staffed by local officials, who themselves have made and enforced local law. This suggests that when Congress creates local offices using these two unique powers, the officers exercise power of the local government, not the Federal Government. Historical practice indicates that a federal law’s creation of an office does not automatically make its holder an officer of the United States. Congress has for more than two centuries created local offices for the Territories and District of Columbia that are filled through election or local executive appointment. And the history of Puerto Rico—whose public officials with important local responsibilities have been selected in ways that the Appointments Clause does not describe—is consistent with the history of other entities that fall within Article IV’s scope and with the history of the District of Columbia. This historical practice indicates that when an officer of one of these local governments has primarily local duties, he is not an officer of the United States within the meaning of the Appointments Clause. Pp. 9–14. (b) The Board members here have primarily local powers and duties. PROMESA says that the Board is \"an entity within the territorial government\" that \"shall not be considered a department, agency, establishment, or instrumentality of the Federal Government,\" §101(c), 130 Stat. 553, and Congress gave the Board a structure, duties, and related powers that are consistent with this statement. The Board’s broad investigatory powers—administering oaths, issuing subpoenas, taking evidence, and demanding data from governments and creditors alike—are backed by Puerto Rican, not federal, law. Its powers to oversee the development of Puerto Rico’s fiscal and budgetary plans are also quintessentially local. And in exercising its power to initiate bankruptcy proceedings, the Board acts on behalf of, and in the interests of, Puerto Rico. Pp. 14–17. (c) Buckley v. Valeo, 424 U. S. 1, Freytag v. Commissioner, 501 U. S. 868, and Lucia v. SEC, 585 U. S. ___, do not provide the relevant legal test here, for each considered an Appointments Clause problem concerning the importance or significance of duties that were indisputably federal or national in nature. Nor do Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, or MWAA, 501 U. S. 252, help. Lebron considered whether Amtrak was a governmental or a private entity, but the fact that the Board is a Government entity does not answer the \"primarily local versus primarily federal\" question. And the MWAA Court expressly declined to address Appointments Clause questions. However, the Court’s analysis in O’Donoghue v. United States, 289 U. S. 516, and Palmore v. United States, 411 U. S. 389, does provide a rough analogy. In O’Donoghue, the Court found that Article III’s tenure and salary protections applied to judges of the District of Columbia courts because those courts exercised the judicial power of the United States. But the Court reached the seemingly opposite conclusion in Palmore, a case decided after Congress had altered the nature of the District of Columbia local courts so that its judges adjudicated primarily local issues. Pp. 17–21. 3. Given the conclusion reached here, there is no need to consider whether to overrule the \"Insular Cases\" and their progeny, see, e.g., Downes v. Bidwell, 182 U. S. 244, 287, to consider the application of the de facto officer doctrine, see Ryder v. United States, 515 U. S. 177, or to decide questions about the application of the Federal Relations Act and Public Law 600. Pp. 21–22. 915 F. 3d 838, reversed and remanded.", "opinion": "The Constitution’s Appointments Clause says that the President \"shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . .\" Art. II, §2, cl. 2 (emphasis added). In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). 130 Stat. 549, 48 U. S. C. §2101 et seq. That Act created a Financial Oversight and Management Board, and it provided, as relevant here, that the President could appoint its seven members without \"the advice and consent of the Senate,\" i.e., without Senate confirmation. The question before us is whether this method of appointment violates the Constitution’s Senate confirmation requirement. In our view, the Appointments Clause governs the appointments of all officers of the United States, including those located in Puerto Rico. Yet two provisions of the Constitution empower Congress to create local offices for the District of Columbia and for Puerto Rico and the Territories. See Art. I, §8, cl. 17; Art. IV, §3, cl. 2. And the Clause’s term \"Officers of the United States\" has never been understood to cover those whose powers and duties are primarily local in nature and derive from these two constitutional provisions. The Board’s statutory responsibilities consist of primarily local duties, namely, representing Puerto Rico in bankruptcy proceedings and supervising aspects of Puerto Rico’s fiscal and budgetary policies. We therefore find that the Board members are not \"Officers of the United States.\" For that reason, the Appointments Clause does not dictate how the Board’s members must be selected. I A In 2006, tax advantages that had previously led major businesses to invest in Puerto Rico expired. See Small Business Job Protection Act of 1996, §1601, 110 Stat. 1827. Many industries left the island. Emigration increased. And the public debt of Puerto Rico’s government and its instrumentalities soared, rising from $39.2 billion in 2005 to $71 billion in 2016. See Dept. of Treasury, Puerto Rico’s Economic and Fiscal Crisis 1, 3, https://www.treasury.gov/ connect/blog/Documents/Puerto_Ricos_fiscal_challenges.pdf; GAO, U. S. Territories: Public Debt Outlook 12 (GAO–18– 160, 2017). Puerto Rico found that it could not service that debt. Yet Puerto Rico could not easily restructure it. The Federal Bankruptcy Code’s municipality-related Chapter 9 did not apply to Puerto Rico (or to the District of Columbia). See 11 U. S. C. §§109(c), 101(52). But at the same time, federal bankruptcy law invalidated Puerto Rico’s own local \"debtrestructuring\" statutes. Puerto Rico v. Franklin Cal. TaxFree Trust, 579 U. S. ___ (2016). In 2016, in response to Puerto Rico’s fiscal crisis, Congress enacted PROMESA. 130 Stat. 549, 48 U. S. C. §2101 et seq. PROMESA allows Puerto Rico and its entities to file for federal bankruptcy protection. See §§301, 302, 130 Stat. 577, 579; cf. 11 U. S. C. §901 (related to bankruptcies of local governments). The filing and subsequent proceedings are to take place in the United States District Court for the District of Puerto Rico, before a federal judge selected by the Chief Justice of the United States. PROMESA §§307– 308, 130 Stat. 582. PROMESA also created the Financial Oversight and Management Board—with seven members appointed by the President and with the Governor serving as an ex officio member. §§101(b), (e), id., at 553, 554–555. PROMESA gives the Board authority to file for bankruptcy on behalf of Puerto Rico or its instrumentalities. §304(a), id., at 579. The Board can supervise and modify Puerto Rico’s laws (and budget) to \"achieve fiscal responsibility and access to the capital markets.\" §201(b), id., at 564; see §§201–207, id., at 563–575. And it can gather evidence and conduct investigations in support of these efforts. §104, id., at 558–561. As we have just said, PROMESA gives the President of the United States the power to appoint the Board’s seven members without Senate confirmation, so long as he selects six from lists prepared by congressional leaders. §101(e)(2)(A), id., at 554–555. B On August 31, 2016, President Obama selected the Board’s seven members in the manner just described. The Board established offices in Puerto Rico and New York, and soon filed bankruptcy petitions on behalf of the Commonwealth and (eventually) five Commonwealth entities. Title III Petition in No. 17–BK–3283 (PR); see Order Pursuant to PROMESA Section 304(g), No. 17–BK–3283 (PR, Oct. 9, 2019), Doc. 8829 (consolidating petitions filed on behalf of the Commonwealth of Puerto Rico, the Puerto Rico Sales Tax Financing Corporation, the Puerto Rico Highways and Transportation Authority, the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, the Puerto Rico Electric Power Authority, and the Puerto Rico Public Buildings Authority). And the Chief Justice then selected a federal judge to serve as bankruptcy judge for Puerto Rico. Designation of Presiding District Judge, No. 17–BK–3283 (PR, May 5, 2017), Doc. 4. After both court and Board had decided a number of matters, several creditors moved to dismiss all proceedings on the ground that the Board members’ selection violated the Appointments Clause. The court denied the motions. See In re Financial Oversight and Management Bd. of Puerto Rico, 318 F. Supp. 3d 537, 556–557 (PR 2018). The creditors appealed to the United States Court of Appeals for the First Circuit. That court reversed. It held that the selection of the Board’s members violated the Appointments Clause. 915 F. 3d 838, 861 (2019). But it concluded that those Board actions taken prior to its decision remained valid under the \"de facto officer\" doctrine. Id., at 862–863; see, e.g., McDowell v. United States, 159 U. S. 596, 601 (1895) (judicial decisions could not later be attacked on ground that an unlawfully sitting judge presided); Ball v. United States, 140 U. S. 118, 128–129 (1891) (same). The Board, the United States, and various creditors then filed petitions for certiorari in this Court, some arguing that the appointments were constitutionally valid, others that the de facto officer doctrine did not apply. Compare Pets. for Cert. in Nos. 18–1334, 18–1496, 18–1514 with Pets. for Cert. in Nos. 18–1475, 18–1521. In light of the importance of the questions, we granted certiorari in all the petitions and consolidated them for argument. 588 U. S. ___ (2019). II Congress created the Board pursuant to its power under Article IV of the Constitution to \"make all needful Rules and Regulations respecting the Territory . . . belonging to the United States.\" §3, cl. 2; see PROMESA §101(b)(2), 130 Stat. 553. Some have argued in these cases that the Appointments Clause simply does not apply in the context of Puerto Rico. But, like the Court of Appeals, we believe the Appointments Clause restricts the appointment of all officers of the United States, including those who carry out their powers and duties in or in relation to Puerto Rico. The Constitution’s structure provides strong reason to believe that is so. The Constitution separates the three basic powers of Government—legislative, executive, and judicial—with each branch serving different functions. But the Constitution requires cooperation among the three branches in specified areas. Thus, to become law, proposed legislation requires the agreement of both Congress and the President (or, a supermajority in Congress). See INS v. Chadha, 462 U. S. 919, 955 (1983) (noting that the Constitution prescribes only four specific actions that Congress can take without bicameralism and presentment). At the same time, legislation must be consistent with constitutional constraints, and we usually look to the Judiciary as the ultimate interpreter of those constraints. The Appointments Clause reflects a similar allocation of responsibility, between President and Senate, in cases involving appointment to high federal office. That Clause reflects the Founders’ reaction to \"one of [their] generation’s greatest grievances against [pre-Revolutionary] executive power,\" the manipulation of appointments. Freytag v. Commissioner, 501 U. S. 868, 883 (1991); see also The Federalist No. 76, p. 455 (C. Rossiter ed. 1961) (A. Hamilton) (the Appointments Clause helps to preserve democratic accountability). The Founders addressed their concerns with the appointment power by both concentrating it and distributing it. On the one hand, they ensured that primary responsibility for nominations would fall on the President, whom they deemed \"less vulnerable to interest-group pressure and personal favoritism\" than a collective body. Edmond v. United States, 520 U. S. 651, 659 (1997). See also The Federalist No. 76, at 455 (\"The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation\"). On the other hand, they ensured that the Senate’s advice and consent power would provide \"an excellent check upon a spirit of favoritism in the President and a guard against the appointment of unfit characters.\" NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip op., at 2) (internal quotation marks omitted). By \"limiting the appointment power\" in this fashion, the Clause helps to \"ensure that those who wielded [the appointments power] were accountable to political force and the will of the people.\" Freytag, supra, at 884; see also Edmond, 520 U. S., at 659. \"The blame of a bad nomination would fall upon the president singly and absolutely,\" while \"[t]he censure of rejecting a good one would lie entirely at the door of the senate.\" Id., at 660 (internal quotation marks omitted). These other structural constraints, designed in part to ensure political accountability, apply to all exercises of federal power, including those related to Article IV entities. Cf., e.g., Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 270–271 (1991) (MWAA) (separation-of-powers principles apply when Congress acts under its Article IV power to legislate \"respecting . . . other Property\"). See also, e.g., Act of Aug. 7, 1789, ch. 8, 1 Stat. 50 (the First Congress using bicameralism and presentment to make rules and regulations for the Northwest Territory). The objectives advanced by the Appointments Clause counsel strongly in favor of that Clause applying to the appointment of all \"Officers of the United States.\" Why should it be different when such an officer’s duties relate to Puerto Rico or other Article IV entities? Indeed, the Appointments Clause has no Article IV exception. The Clause says in part that the President \"shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments . . . shall be established by Law . . . .\" Art. II, §2, cl. 2. That text firmly indicates that it applies to the appointment of all \"Officers of the United States.\" And history confirms this reading. Before the writing of the Constitution, Congress had enacted an ordinance that allowed Congress to appoint officers to govern the Northwest Territory. As soon as the Constitution became law, the First Congress \"adapt[ed]\" that ordinance \"to the present Constitution of the United States,\" Act of Aug. 7, 1789, 1 Stat. 51, in large part by providing for an appointment process consistent with the constraints of the Appointments Clause. In particular, it provided for a Presidential-appointment, Senateconfirmation process for high-level territorial appointees who assumed federal, as well as local, duties. See id., at 52, n. (a); §1, id., at 53 (appointment by President, and confirmation by Senate, of Governor, secretary, and members of the upper house); Act of Sept. 11, 1789, ch. 13, §1, 1 Stat. 68 (Governor \"discharg[ed]\" the federal \"duties of superintendent of Indian affairs\"). Later Congresses took a similar approach to later territorial Governors with federal duties. See Act of June 6, 1900, §10, 31 Stat. 325 (appointment of Governor of Territory of Alaska by President with confirmation by Senate); §2, id., at 322 (federal duties of Alaska territorial Governor include entering into contracts in name of the United States and granting reprieves for federal offenses); Act of Mar. 2, 1819, §§3, 10, 3 Stat. 494, 495 (similar for Governor of Arkansas). We do not mean to suggest that every time Congress chooses to require advice and consent procedures it does so because they are constitutionally required. At times, Congress may wish to require Senate confirmation for policy reasons. Even so, Congress’ practice of requiring advice and consent for these Governors with important federal duties supports the inference that Congress expected the Appointments Clause to apply to at least some officials with supervisory authority over the Territories. Given the Constitution’s structure, this history, roughly analogous case law, and the absence of any conflicting authority, we conclude that the Appointments Clause constrains the appointments power as to all \"Officers of the United States,\" even when those officers exercise power in or related to Puerto Rico. III A The more difficult question before us is whether the Board members are officers of the United States such that the Appointments Clause requires Senate confirmation. If they are not officers of the United States, but instead are some other type of officer, the Appointments Clause says nothing about them. (No one suggests that they are \"Ambassadors,\" \"other public Ministers and Consuls,\" or \"Judges of the supreme Court.\") And as we shall see, the answer to this question turns on whether the Board members have primarily local powers and duties. The language at issue does not offer us much guidance for understanding the key term \"of the United States.\" The text suggests a distinction between federal officers—officers exercising power of the National Government—and nonfederal officers—officers exercising power of some other government. The Constitution envisions a federalist structure, with the National Government exercising limited federal power and other, local governments—usually state governments—exercising more expansive power. But the Constitution recognizes that for certain localities, there will be no state government capable of exercising local power. Thus, two provisions of the Constitution, Article I, §8, cl. 17, and Article IV, §3, cl. 2, give Congress the power to legislate for those localities in ways \"that would exceed its powers, or at least would be very unusual\" in other contexts. Palmore v. United States, 411 U. S. 389, 398 (1973). Using these powers, Congress has long legislated for entities that are not States—the District of Columbia and the Territories. See District of Columbia v. John R. Thompson Co., 346 U. S. 100, 104–106 (1953). And, in doing so, Congress has both made local law directly and also created structures of local government, staffed by local officials, who themselves have made and enforced local law. Compare, e.g., Act of Mar. 2, 1962, §401, 76 Stat. 17 (changing D. C. liquor tax from $1.25 per gallon to $1.50 per gallon), with District of Columbia Self-Government and Governmental Reorganization Act, 87 Stat. 774 (giving local D. C. government primary legislative control over local matters). This structure suggests that when Congress creates local offices using these two unique powers, the officers exercise power of the local government, not the Federal Government. Cf. American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828) (Marshall, C. J.) (territorial courts may exercise the judicial power of the Territories without the life tenure and salary protections mandated by Article III for federal judges); Cincinnati Soap Co. v. United States, 301 U. S. 308, 323 (1937) (territorial legislators may exercise the legislative power of the Territories without violating the nondelegation doctrine). History confirms what the Constitution’s text and structure suggest. See NLRB v. Noel Canning, 573 U. S. 513, 524 (2014) (relying on history and structure in interpreting the Recess Appointments Clause). See also McCulloch v. Maryland, 4 Wheat. 316, 401 (1819) (emphasizing the utility of historical practice in interpreting constitutional provisions). Longstanding practice indicates that a federal law’s creation of an office in this context does not automatically make its holder an \"Officer of the United States.\" Rather, Congress has often used these two provisions to create local offices filled in ways other than those specified in the Appointments Clause. When the First Congress legislated for the Northwest Territories, for example, it created a House of Representatives for the Territory with members selected by election. It also created an upper house of the territorial legislature, whose members were appointed by the President (without Senate confirmation) from lists provided by the elected, lower house. And it created magistrates appointed by the Governor. See Act of Aug. 7, 1789, 1 Stat. 51, n. (a). The practice of creating by federal law local offices for the Territories and District of Columbia that are filled through election or local executive appointment has continued unabated for more than two centuries. See, e.g., ibid. (Northwest Territories local offices filled by election); Act of Apr. 7, 1798, §3, 1 Stat. 550 (Mississippi, same); Act of May 7, 1800, §2, 2 Stat. 59 (Indiana, same); Act of May 15, 1820, §3, 3 Stat. 584 (District of Columbia, same); Act of Apr. 30, 1900, §13, 31 Stat. 144 (Hawaii, same); Act of Aug. 24, 1912, §4, 37 Stat. 513 (Alaska, same); Act of Aug. 23, 1968, §4, 82 Stat. 837 (Virgin Islands, same); Act of Sept. 11, 1968, Pub. L. 90–497, §1, 82 Stat. 842 (Guam, same); Act of May 4, 1812, §3, 2 Stat. 723 (D. C. mayor appoints \"all offices\"); Act of June 4, 1812, §2, 2 Stat. 744 (Missouri Governor, similar); Act of Mar. 2, 1819, §3, 3 Stat. 494 (Arkansas, similar); Act of June 6, 1900, §2, 31 Stat. 322 (Alaska, similar); Act of Sept. 11, 1968, §1, 82 Stat. 843 (Guam, similar). Like JUSTICE THOMAS, post, at 6 (opinion concurring in judgment), we think the practice of the First Congress is strong evidence of the original meaning of the Constitution. We find this subsequent history similarly illuminates the text’s meaning. Puerto Rico’s history is no different. It reveals a longstanding practice of selecting public officials with important local responsibilities in ways that the Appointments Clause does not describe. In 1898, at the end of the Spanish-American War, the United States took responsibility for determining the civil rights of Puerto Ricans as well as Puerto Rico’s political status. Treaty of Paris, Art. 9, Dec. 10, 1898, 30 Stat. 1759. In 1900, the Foraker Act provided for Presidential appointment (with Senate confirmation) of Puerto Rico’s Governor, the heads of six departments, the legislature’s upper house, and the justices of its high court. Organic Act of 1900, §§ 17, 18, 33, 31 Stat. 81, 84. But it also provided for the selection, through popular election, of a lower legislative house with the power (subject to upper house concurrence) to \"alter, amend, modify, and repeal any and all laws . . . of every character.\" §§27, 32, id., at 82, 84. There is no indication that anyone thought members of the lower house, wielding important local responsibilities, were \"Officers of the United States.\" Congress replaced the Foraker Act with the Jones Act in 1917. Organic Act of Puerto Rico, ch. 145, 39 Stat. 951. Under the Jones Act the Puerto Rican Senate was elected and consequently no longer satisfied the Appointments Clause criteria. See §26, id., at 958. Similarly, the Governor of Puerto Rico nominated four cabinet members, confirmed by the Senate of Puerto Rico. §13, id., at 955–956. The elected legislature retained \"all local legislative powers,\" including the power to appropriate funds. §§ 25, 34, 37, id., at 958, 962, 964. Congress amended the Jones Act in 1947 to provide for an elected Governor of Puerto Rico, and granted that Governor the power to appoint all cabinet officials. See Act of Aug. 5, 1947, ch. 490, §§ 1, 3, 61 Stat. 770, 771. The President retained the power to appoint (with Federal Senate confirmation) judges, an auditor, and the new office of Coordinator of Federal Agencies, who was to supervise federal functions in Puerto Rico and recommend to higher federal officials ways to improve the quality of federal services. §6, id., at 772. In 1950, Congress enacted Public Law 600, \"in the nature of a compact\" with Puerto Rico and subject to approval by the voters of Puerto Rico. Act of July 3, 1950, ch. 446, §§1, 2, 64 Stat. 319. The Act adopted the Jones Act, as amended, as the Puerto Rican Federal Relations Act, and provided for the Jones Act’s substantial (but not complete) repeal upon the effective adoption of a contemplated Puerto Rican constitution. §§4, 5, id., at 319–320. Among the provisions of the Jones Act that Public Law 600 retained were several related to Puerto Rico’s public debt. Congress retained, for example, the triple-tax-exempt nature of Puerto Rican bonds. Jones Act, §3, 39 Stat. 953. It also retained a (later repealed) cap on the amount of public debt Puerto Rico or its subdivisions could accumulate. Ibid. In a public referendum, the citizens of Puerto Rico approved Public Law 600—including the limits on debt in §3 of the Federal Relations Act—and then began the constitution-making process. Pub. L. 600, §§2, 3, 64 Stat. 319; see Act of July 3, 1952, 66 Stat. 327; A. Fernós-Isern, Original Intent in the Constitution of Puerto Rico 13 (2d ed. 2002). Puerto Rico’s popularly ratified Constitution, which Congress accepted with a few fairly minor changes, does not involve the President or the Senate in the appointment process for local officials. That Constitution provides for the election of Puerto Rico’s Governor and legislators. Art. III, §1; Art. IV, §1. And it provides for gubernatorial appointment (and Puerto Rican Senate confirmation) of cabinet officers. Art. IV, §5. The upshot is that Puerto Rico’s history reflects longstanding use of various methods for selecting officials with primarily local responsibilities. This history is consistent with the history of other entities that fall within the scope of Article IV and with the history of the District of Columbia. See supra, at 10–11. And it comports with our precedents, which have long acknowledged that Congress may structure local governments under Article IV and Article I in ways that do not precisely mirror the constitutional blueprint for the National Government. See, e.g., Benner v. Porter, 9 How. 235, 242 (1850). Cf. Glidden Co. v. Zdanok, 370 U. S. 530, 546 (1962) (plurality opinion) (recognizing that local governments created by Congress could, like governments of the States, \"dispense with protections deemed inherent in a separation of governmental powers\"). Sometimes Congress has specified the use of methods that would satisfy the Appointments Clause, other times it has specified methods that would not satisfy the Appointments Clause, including elections and appointment by local officials. Officials with primarily local duties have often fallen into the latter categories. We know of no case endorsing an Appointments Clause based challenge to such selection methods. Indeed, to read Appointments Clause constraints as binding Puerto Rican officials with primarily local duties would work havoc with Puerto Rico’s (federally ratified) democratic methods for selecting many of its officials. We thus conclude that while the Appointments Clause does restrict the appointment of \"Officers of the United States\" with duties in or related to the District of Columbia or an Article IV entity, it does not restrict the appointment of local officers that Congress vests with primarily local duties under Article IV, §3, or Article I, §8, cl. 17. B The question remains whether the Board members have primarily local powers and duties. We note that the Clause qualifies the phrase \"Officers of the United States\" with the words \"whose Appointments . . . shall be established by Law.\" And we also note that PROMESA says that the Board is \"an entity within the territorial government\" and \"shall not be considered a department, agency, establishment, or instrumentality of the Federal Government.\" §101(c), 130 Stat. 553. But the most these words show is that Congress did not intend to make the Board members \"Officers of the United States.\" It does not prove that, insofar as the Constitution is concerned, they succeeded. But we think they have. Congress did not simply state that the Board is part of the local Puerto Rican government. Rather, Congress also gave the Board a structure, a set of duties, and related powers all of which are consistent with this statement. The government of Puerto Rico pays the Board’s expenses, including the salaries of its employees (the members serve without pay). §107, id., at 562; see §101(g), id., at 556. The Board possesses investigatory powers. It can hold hearings. §104(a), id., at 558. It can issue subpoenas, subject to Puerto Rico’s limits on personal jurisdiction and enforceable under Puerto Rico’s laws. §104(f ), id., at 559. And it can enforce those subpoenas in (and only in) Puerto Rico’s courts. §§104(f )(2), 106(a), id., at 559, 562. From its own offices in or outside of Puerto Rico, the Board works with the elected government of Puerto Rico to develop a fiscal plan that provides \"a method to achieve fiscal responsibility and access to the capital markets.\" §201(b), id., at 564. If it finds it necessary, the Board can develop its own budget for Puerto Rico which is \"deemed . . . approved\" and becomes the operative budget. §202(e)(3), id., at 568. It can ensure compliance with the plan and budget by reviewing the Puerto Rico government’s laws and spending and by \"direct[ing]\" corrections or taking \"such [other] actions as it considers necessary,\" including preventing a law from taking effect. §§203(d), 204(a), id., at 569, 571. The Board controls the issuance of new debt for Puerto Rico. §207, id., at 575. The Board also may initiate bankruptcy proceedings for Puerto Rico or its instrumentalities. §304(a), id., at 579. It may take any related \"action necessary on behalf of,\" and it serves as \"the representative of,\" Puerto Rico or its instrumentalities. §315, id., at 584. These proceedings take place in the U. S. District Court for Puerto Rico. §307, id., at 582. To repeat: The Board has broad investigatory powers: It can administer oaths, issue subpoenas, take evidence and demand data from governments and creditors alike. But these powers are backed by Puerto Rican, not federal, law: Subpoenas are governed by Puerto Rico’s personal jurisdiction statute; false testimony is punishable under the law of Puerto Rico; the Board must seek enforcement of its subpoenas by filing in the courts of Puerto Rico. See §104, id., at 558–561. These powers are primarily local in nature. The Board also oversees the development of Puerto Rico’s fiscal and budgetary plans. It receives and evaluates proposals from the elected Governor and legislature. It can create a budget \"deemed\" to be that of Puerto Rico. It can intervene when budgetary constraints are violated. And it has authority over the issuance of new debt. §§201–207, id., at 563–575. These powers, too, are quintessentially local. Each concerns the finances of the Commonwealth, not of the United States. The Board members in this respect discharge duties ordinarily held by local officials. Last, the Board has the power to initiate bankruptcy proceedings. But in doing so, it acts not on behalf of the United States, but on behalf of, and in the interests of, Puerto Rico. The proceedings take place in federal court; but the same is true of all persons or entities who seek bankruptcy protection. The Board here acts as a local government that might take precisely the same actions. See, e.g., 11 U. S. C. §§109(c), 921 (related to bankruptcies of local governments). Some Board actions, of course, may have nationwide consequences. But the same can be said of many actions taken by many Governors or other local officials. Taking actions with nationwide consequences does not automatically transform a local official into an \"Officer of the United States.\" The challengers rely most heavily on the nationwide effects of the bankruptcy proceedings. E.g., Brief for Aurelius et al. 31; Brief for Petitioner Unión de Trabajadores de la Industria Eléctrica y Riego, Inc. (UTIER) 49. But the same might be said of any major municipal, or even corporate, bankruptcy. E.g., In re Detroit, 504 B. R. 97 (Bkrtcy. Ct. ED Mich. 2013) (restructuring $18 billion in municipal debt). In short, the Board possesses considerable power—including the authority to substitute its own judgment for the considered judgment of the Governor and other elected officials. But this power primarily concerns local matters. Congress’ law thus substitutes a different process for determining certain local policies (related to local fiscal responsibility) in respect to local matters. And that is the critical point for current purposes. The local nature of the legislation’s expressed purposes, the representation of local interests in bankruptcy proceedings, the focus of the Board’s powers upon local expenditures, the local logistical support, the reliance on local laws in aid of the Board’s procedural powers—all these features when taken together and judged in the light of Puerto Rico’s history (and that of the Territories and the District of Columbia)—make clear that the Board’s members have primarily local duties, such that their selection is not subject to the constraints of the Appointments Clause. IV The Court of Appeals, pointing to three of this Court’s cases, reached the opposite conclusion. See Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), Freytag v. Commissioner, 501 U. S. 868, and Lucia v. SEC, 585 U. S. ___ (2018). It pointed out that the Court, in those cases, discussed the term \"Officer of the United States,\" and it concluded that, for Appointments Clause purposes, an appointee is such an \"officer\" if \"(1) the appointee occupies a ‘continuing’ position established by federal law; (2) the appointee ‘exercis[es] significant authority’; and (3) the significant authority is exercised ‘pursuant to the laws of the United States.’\" 915 F. 3d, at 856. The Court of Appeals concluded that the Board members satisfied this test. See id., at 856–857. We do not believe these three cases set forth the critical legal test relevant here, however, and we do not apply any test they might enunciate. Each of the cases considered an Appointments Clause problem concerning the importance or significance of duties that were indisputably federal or national in nature. In Buckley, the question was whether members of the Federal Election Commission—appointees carrying out federal-election related duties—were \"officers\" for Appointments Clause purposes. In Freytag, the Court asked the same question about special federal trial judges serving on federal tax courts. And in Lucia the Court asked the same question about federal administrative law judges carrying out Securities and Exchange Commission duties. Here, PROMESA, a federal law, creates the Board and its duties, and no one doubts their significance. But we cannot stop there. To do so would ignore the history we have discussed—history stretching back to the founding. See supra, at 10–13. And failing to take account of the nature of an appointee’s federally created duties, i.e., whether they are primarily local versus primarily federal, would threaten interference with democratic (or local appointment) selection methods in numerous Article IV Territories and perhaps the District of Columbia as well. See, e.g., 48 U. S. C. §1422 (providing for an elected Governor of Guam); §1591 (same for Virgin Islands); District of Columbia Self-Government Act, §421, 87 Stat. 789 (same for D. C. Mayor); §422(2), 87 Stat. 790 (describing D. C. Mayor’s appointment powers); 48 U. S. C. §1422c (same for Guam’s Governor); §1597(c) (same for Virgin Islands). There is no reason to understand the Appointments Clause—which, at least in part, seeks to advance democratic accountability and broaden appointments-related responsibility, see supra, at 6–7—as making it significantly more difficult for local residents of such areas to share responsibility for the implementation of (statutorily created) primarily local duties. Neither the text nor the history of the Clause commands such a result. Neither do Lebron v. National Railroad Passenger Corporation, 513 U. S. 374 (1995), or MWAA, 501 U. S. 252, help those challenging the Board’s constitutional legitimacy. Lebron considered whether, for First Amendment purposes, Amtrak was a governmental or a private entity. 513 U. S., at 379. All here agree that the Board is a Government entity, but that fact does not answer the \"primarily local versus primarily federal\" question. In MWAA, the Court held that separation-of-powers principles forbid Members of Congress to become members of a board that controls federally owned airports. 501 U. S., at 275–276 (relying on Bowsher v. Synar, 478 U. S. 714, 726 (1986), and INS v. Chadha, 462 U. S. 919, 952 (1983)). The Court expressly declined to answer any question related to the Appointments Clause. 501 U. S., at 277, n. 23. While we have found no case from this Court directly on point, we believe that the Court’s analysis in O’Donoghue v. United States, 289 U. S. 516 (1933), and especially Palmore v. United States, 411 U. S. 389, provides a rough analogy. In O’Donoghue, the Court considered whether Article III’s tenure and salary protections applied to judges of the courts in the District of Columbia. The Court held that they did. Those courts, it believed, were \"‘courts of the United States’\" and \"recipients of the judicial power of the United States.\" 289 U. S., at 546, 548. The judges’ salaries consequently could not be reduced. Id., at 551. In Palmore, however, the Court reached what might seem the precisely opposite conclusion. A criminal defendant, invoking O’Donoghue, argued that the D. C. Superior Court Judge could not constitutionally preside over the case because the judge lacked Article III’s tenure protection, namely, life tenure. Palmore, supra, at 390. But the Court rejected the defendant’s argument. Why? How did it explain O’Donoghue? The difference, said the Court, lies in the fact that, in the meantime, Congress had changed the nature of the District of Columbia court. Palmore, supra, at 406–407; see District of Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 473. Congress changed what had been a unified court system where judges adjudicated both local and federal issues into separate court systems, in one of which judges adjudicated primarily local issues. §111, id., at 475. Courts in that category had criminal jurisdiction over only those cases brought \"‘under any law applicable exclusively to the District of Columbia.’\" Id., at 486. Its judges served for 15-year terms. Id., at 491. This Court, in Palmore, considered a local judge presiding over a local court. Congress had created that court in the exercise of its Article I power to \"exercise exclusive Legislation in all Cases whatsoever\" over the District of Columbia. See Art I, §8, cl. 17. The \"focus\" of these courts was \"primarily upon . . . matters of strictly local concern.\" 411 U. S., at 407. Hence, the nature of those courts was a \"far cry\" from that of the courts at issue in O’Donoghue. Palmore, 411 U. S., at 406. The Court added that Congress had created non-Article III courts under its Article IV powers. It wrote that Congress could also create non-Article III courts under its Article I powers. Id., at 403, 410. And it held that judges serving on those non-Article III courts lacked Article III protections. Id., at 410. Palmore concerned Article I of the Constitution, not Article IV. And it concerned \"the judicial Power of the United States,\" not \"Officers of the United States.\" But it provides a rough analogy. It holds that Article III protections do not apply to an Article I court \"focus[ed],\" unlike the courts at issue in O’Donoghue, primarily on local matters. Here, Congress expressly invoked a constitutional provision allowing it to make local debt-related law (Article IV); it expressly located the Board within the local government of Puerto Rico; it clearly indicated that it intended the Board’s members to be local officials; and it gave them primarily local powers, duties, and responsibilities. In his concurring opinion, JUSTICE THOMAS criticizes the inquiry we set out—whether an officer’s duties are primarily local or primarily federal—as too \"amorphous,\" post, at 10. But we think this is the test established by the Constitution’s text, as illuminated by historical practice. And we cannot see how Congress could avoid the strictures of the Appointments Clause by adding to a federal officer’s other obligations a large number of local duties. Indeed, we think that our test, tied as it is to both the text and the history of the Appointments Clause, is more rigorous than the bare inquiry into the \"nature\" of the officer’s authority that JUSTICE THOMAS proposes, and we believe it is more faithful to the Clause’s original meaning. Ibid. V We conclude, for the reasons stated, that the Constitution’s Appointments Clause applies to the appointment of officers of the United States with powers and duties in and in relation to Puerto Rico, but that the congressionally mandated process for selecting members of the Financial Oversight and Management Board for Puerto Rico does not violate that Clause. Given this conclusion, we need not consider the request by some of the parties that we overrule the much-criticized \"Insular Cases\" and their progeny. See, e.g., Downes v. Bidwell, 182 U. S. 244, 287 (1901) (opinion of Brown, J.); Balzac v. Porto Rico, 258 U. S. 298, 309 (1922); Reid v. Covert, 354 U. S. 1, 14 (1957) (plurality opinion) (indicating that the Insular Cases should not be further extended); see also Brief for Official Committee of Unsecured Creditors of All Title III Debtors (Other than COFINA) 20–25 (arguing that the Insular Cases support reversal on the Appointments Clause issue); Brief for UTIER 64–66 (encouraging us to overrule the Insular Cases); Brief for Virgin Islands Bar Association as Amicus Curiae 13–18 (same); Cabranes, Citizenship and the American Empire, 127 U. Pa. L. Rev. 391, 436–442 (1978) (criticizing the Insular Cases); Littlefield, The Insular Cases, 15 Harv. L. Rev. 169 (1901) (same). Those cases did not reach this issue, and whatever their continued validity we will not extend them in these cases. See Reid, supra, at 14. Neither, since we hold the appointment method valid, need we consider the application of the de facto officer doctrine. See Ryder v. United States, 515 U. S. 177 (1995) (discussing the doctrine); see also, e.g., Brief for Aurelius et al. 48–69 (arguing the doctrine does not apply in this context); Brief for UTIER 69–85 (same); Reply Brief for United States 26–47 (insisting to the contrary); Brief for Cross-Respondent COFINA Senior Bondholders’ Coalition 14–46 (same). Finally, as JUSTICE SOTOMAYOR recognizes, post, at 8 (opinion concurring in judgment), we need not, and therefore do not, decide questions concerning the application of the Federal Relations Act and Public Law 600. No party has argued that those Acts bear any significant relation to the answer to the Appointments Clause question now before us. For these reasons, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion."},
{"docket_number": "18-1048", "syllabus": "ThyssenKrupp Stainless USA, LLC, entered into three contracts with F. L. Industries, Inc., for the construction of cold rolling mills at ThyssenKrupp’s steel manufacturing plant in Alabama. Each contract contained a clause requiring arbitration of any contract dispute. F. L. Industries then entered into a subcontractor agreement with petitioner (GE Energy) for the provision of nine motors to power the cold rolling mills. After the motors for the cold rolling mills allegedly failed, Outokumpu Stainless USA, LLC (which acquired ownership of the plant), and its insurers sued GE Energy in Alabama state court. GE Energy removed the case to federal court under 9 U. S. C. §205. It then moved to dismiss and compel arbitration, relying on the arbitration clauses in the F. L. Industries and ThyssenKrupp contracts. The District Court granted the motion, concluding that both Outokumpu and GE Energy were parties to the agreement. The Eleventh Circuit reversed. It concluded that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention or Convention) allows enforcement of an arbitration agreement only by the parties that actually signed the agreement and that GE Energy was a nonsignatory. It also held that allowing GE Energy to rely on statelaw equitable estoppel doctrines to enforce the arbitration agreement would conflict with the Convention’s signatory requirement. Held: The New York Convention does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories. Pp. 3–12. (a) Chapter 1 of the Federal Arbitration Act (FAA) does not \"background principles of state contract law regarding the scope of agreements (including the question of who is bound by them).\" Arthur Andersen LLP v. Carlisle, 556 U. S. 624, 630. The \" ‘traditional principles’ of state law\" that apply under Chapter 1 include doctrines, like equitable estoppel, authorizing contract enforcement by a nonsignatory. Id., at 631–632. The New York Convention is a multilateral treaty addressing international arbitration. One Article of the Convention addresses arbitration agreements—Article II—and one provision of Article II addresses the enforcement of those agreements—Article II(3). Article II(3) provides that courts of a contracting state \"shall . . . refer the parties to arbitration\" when the parties to an action entered into a written agreement to arbitrate and one of the parties requests such a referral. Chapter 2 of the FAA grants federal courts jurisdiction over actions governed by the Convention. As relevant here, Chapter 2 provides that \"Chapter 1 applies to actions and proceedings brought under this chapter to the extent that [Chapter 1] is not in conflict with this chapter or the Convention.\" 9 U. S. C. §208. Pp. 3–6. (b) The application of familiar tools of treaty interpretation establishes that the state-law equitable estoppel doctrines permitted under Chapter 1 do not \"conflict with . . . the Convention.\" §208. Pp. 6–11. (1) The text of the New York Convention does not address whether nonsignatories may enforce arbitration agreements under domestic doctrines such as equitable estoppel. The Convention is simply silent on the issue of nonsignatory enforcement. This silence is dispositive because nothing in the Convention’s text could be read to conflict with the application of domestic equitable estoppel doctrines. Article II(3)— the only provision in the Convention addressing the enforcement of arbitration agreements—contains no exclusionary language; it does not state that arbitration agreements shall be enforced only in the identified circumstances. Given that the Convention was drafted against the backdrop of domestic law, it would be unnatural to read Article II(3) to displace domestic doctrines in the absence of such language. This interpretation is especially appropriate because Article II contemplates using domestic doctrines to fill gaps in the Convention. Pp. 6– 7. (2) This interpretation is confirmed by the Convention’s negotiation and drafting history as well as \" ‘the postratification understanding’ of signatory nations,\" Medellín v. Texas, 552 U. S. 491, 507. Cherry-picked generalizations from the negotiating and drafting history cannot be used to create a rule that finds no support in the treaty’s text. Here, to the extent that the Convention’s drafting history sheds any light on the treaty’s meaning, it shows only that the drafters sought to impose baseline requirements on contracting states so that signatories would \"not be permitted to decline enforcement of such agreements on the basis of parochial views of their desirability or in a manner that would diminish the mutually binding nature of the agreements.\" Scherk v. Alberto-Culver Co., 417 U. S. 506, 520, n. 15. The postratification understanding of other contracting states—as evidenced by the \"[d]ecisions of the courts of other Convention signatories,\" El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 175, and the \"postratification conduct\" of contracting state governments, Zicherman v. Korean Air Lines Co., 516 U. S. 217, 227—may also serve as an aid to this Court’s interpretation. Here, numerous sources indicate that the New York Convention does not prohibit the application of domestic law addressing the enforcement of arbitration agreements. These sources, however, are from decades after the finalization of the New York Convention’s text in 1958. This diminishes their value as evidence of the original understanding of the treaty’s meaning. Finally, because the Court’s textual analysis and the Executive’s interpretation of the Convention align here, there is no need to determine whether the Executive’s understanding is entitled to \"weight\" or \"deference.\" Cf. Edelman v. Lynchburg College, 535 U. S. 106, 114– 115, n. 8. Pp. 7–11. (c) The Court of Appeals may address on remand whether GE Energy can enforce the arbitration clauses under equitable estoppel principles and which body of law governs that determination. Pp. 11–12. 902 F. 3d 1316, reversed and remanded.", "opinion": "The question in this case is whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U. S. T. 2517, T. I. A. S. No. 6997, conflicts with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories. We hold that it does not. I In 2007, ThyssenKrupp Stainless USA, LLC, entered into three contracts with F. L. Industries, Inc., for the construction of cold rolling mills at ThyssenKrupp’s steel manufacturing plant in Alabama. Each of the contracts contained an identical arbitration clause. The clause provided that \"[a]ll disputes arising between both parties in connection with or in the performances of the Contract . . . shall be submitted to arbitration for settlement.\" App. 171. After executing these agreements, F. L. Industries, Inc., entered into a subcontractor agreement with petitioner GE Energy Power Conversion France SAS, Corp. (GE Energy), then known as Converteam SAS. Under that agreement, GE Energy agreed to design, manufacture, and supply motors for the cold rolling mills. Between 2011 and 2012, GE Energy delivered nine motors to the Alabama plant for installation. Soon thereafter, respondent Outokumpu Stainless USA, LLC, acquired ownership of the plant from ThyssenKrupp. According to Outokumpu, GE Energy’s motors failed by the summer of 2015, resulting in substantial damages. In 2016, Outokumpu and its insurers filed suit against GE Energy in Alabama state court. GE Energy removed the case to federal court under 9 U. S. C. §205, which authorizes the removal of an action from state to federal court if the action \"relates to an arbitration agreement . . . falling under the Convention [on the Recognition and Enforcement of Foreign Arbitral Awards].\" GE Energy then moved to dismiss and compel arbitration, relying on the arbitration clauses in the contracts between F. L. Industries, Inc., and ThyssenKrupp. The District Court granted GE Energy’s motion to dismiss and compel arbitration with Outokumpu and Sompo Japan Insurance Company of America. Outokumpu Stainless USA LLC v. Converteam SAS, 2017 WL 401951 (SD Ala., Jan. 30, 2017).1 The court held that GE Energy qualified as a party under the arbitration clauses because the contracts defined the terms \"Seller\" and \"Parties\" to include subcontractors. Id., at *4. Because the court concluded that both Outokumpu and GE Energy were parties to the agreements, it declined to address GE Energy’s argument that the agreement was enforceable under equitable estoppel. Id., at *1, n. 1. The Eleventh Circuit reversed the District Court’s order compelling arbitration. Outokumpu Stainless USA, LLC v. Converteam SAS, 902 F. 3d 1316 (2018). The court interpreted the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention or Convention) to include a \"requirement that the parties actually sign an agreement to arbitrate their disputes in order to compel arbitration.\" Id., at 1326 (emphasis in original). The court concluded that this requirement was not satisfied because \"GE Energy is undeniably not a signatory to the Contracts.\" Ibid. It then held that GE Energy could not rely on state-law equitable estoppel doctrines to enforce the arbitration agreement as a nonsignatory because, in the court’s view, equitable estoppel conflicts with the Convention’s signatory requirement. Id., at 1326–1327. Given a conflict between the Courts of Appeals on this question,2 we granted certiorari. 588 U. S. ___ (2019). II A Chapter 1 of the Federal Arbitration Act (FAA) permits courts to apply state-law doctrines related to the enforcement of arbitration agreements. Section 2 of that chapter provides that an arbitration agreement in writing \"shall be . . . enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.\" 9 U. S. C. §2. As we have explained, this provision requires federal courts to \"place [arbitration] agreements ‘\"upon the same footing as other contracts.\"’\" Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 474 (1989) (quoting Scherk v. Alberto-Culver Co., 417 U. S. 506, 511 (1974)). But it does not \"alter background principles of state contract law regarding the scope of agreements (including the question of who is bound by them).\" Arthur Andersen LLP v. Carlisle, 556 U. S. 624, 630 (2009). The \"traditional principles of state law\" that apply under Chapter 1 include doctrines that authorize the enforcement of a contract by a nonsignatory. Id., at 631 (internal quotation marks omitted). For example, we have recognized that arbitration agreements may be enforced by nonsignatories through \"‘assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel.’\" Ibid. (quoting 21 R. Lord, Williston on Contracts §57:19, p. 183 (4th ed. 2001)). This case implicates domestic equitable estoppel doctrines. Generally, in the arbitration context, \"equitable estoppel allows a nonsignatory to a written agreement containing an arbitration clause to compel arbitration where a signatory to the written agreement must rely on the terms of that agreement in asserting its claims against the nonsignatory.\" Id., at 200 (2017). In Arthur Andersen, we recognized that Chapter 1 of the FAA permits a nonsignatory to rely on state-law equitable estoppel doctrines to enforce an arbitration agreement. 556 U. S., at 631–632. B The New York Convention is a multilateral treaty that addresses international arbitration. 21 U. S. T. 2517, T. I. A. S. No. 6997. It focuses almost entirely on arbitral awards. Article I(1) describes the Convention as applying only to \"the recognition and enforcement of arbitral awards.\" Id., at 2519. Articles III, IV, and V contain recognition and enforcement obligations related to arbitral awards for contracting states and for parties seeking the enforcement of arbitral awards. Id., at 2519–2520. Article VI addresses when an award can be set aside or suspended. Id., at 2520. And Article VII(1) states that the \"Convention shall not . . . deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.\" Id., at 2520–2521. Only one article of the Convention addresses arbitration agreements—Article II. That article contains only three provisions, each one sentence long. Article II(1) requires \"[e]ach Contracting State [to] recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.\" Id., at 2519. Article II(2) provides that \"[t]he term ‘agreement in writing’ shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.\" Ibid. Finally, Article II(3) states that \"[t]he court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.\" Ibid. C In 1970, the United States acceded to the New York Convention, and Congress enacted implementing legislation in Chapter 2 of the FAA. See 84 Stat. 692, 9 U. S. C. §§201– 208. Chapter 2 grants federal courts jurisdiction over actions governed by the Convention, §203; establishes venue for such actions, §204; authorizes removal from state court, §205; and empowers courts to compel arbitration, §206. Chapter 2 also states that \"Chapter 1 applies to actions and proceedings brought under this chapter to the extent that [Chapter 1] is not in conflict with this chapter or the Convention.\" §208. III We must determine whether the equitable estoppel doctrines permitted under Chapter 1 of the FAA, see supra, at 3–4, \"conflict with . . . the Convention.\" §208. Applying familiar tools of treaty interpretation, we conclude that they do not conflict. A \"The interpretation of a treaty, like the interpretation of a statute, begins with its text.\" Medellín v. Texas, 552 U. S. 491, 506 (2008). The text of the New York Convention does not address whether nonsignatories may enforce arbitration agreements under domestic doctrines such as equitable estoppel. The Convention is simply silent on the issue of nonsignatory enforcement, and in general, \"a matter not covered is to be treated as not covered\"—a principle \"so obvious that it seems absurd to recite it,\" A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012). This silence is dispositive here because nothing in the text of the Convention could be read to otherwise prohibit the application of domestic equitable estoppel doctrines. Only one Article of the Convention addresses arbitration agreements—Article II—and only one provision of Article II addresses the enforcement of those agreements—Article II(3). The text of Article II(3) states that courts of a contracting state \"shall . . . refer the parties to arbitration\" when the parties to an action entered into a written agreement to arbitrate and one of the parties requests referral to arbitration. The provision, however, does not restrict contracting states from applying domestic law to refer parties to arbitration in other circumstances. That is, Article II(3) provides that arbitration agreements must be enforced in certain circumstances, but it does not prevent the application of domestic laws that are more generous in enforcing arbitration agreements. Article II(3) contains no exclusionary language; it does not state that arbitration agreements shall be enforced only in the identified circumstances. Given that the Convention was drafted against the backdrop of domestic law, it would be unnatural to read Article II(3) to displace domestic doctrines in the absence of exclusionary language. Cf. Marx v. General Revenue Corp., 568 U. S. 371, 380–384 (2013). This interpretation is especially appropriate in the context of Article II. Far from displacing domestic law, the provisions of Article II contemplate the use of domestic doctrines to fill gaps in the Convention. For example, Article II(1) refers to disputes \"capable of settlement by arbitration,\" but it does not identify what disputes are arbitrable, leaving that matter to domestic law. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 639, n. 21 (1985). Similarly, Article II(3) states that it does not apply to agreements that are \"null and void, inoperative or incapable of being performed,\" but it fails to define those terms. Again, the Convention requires courts to rely on domestic law to fill the gaps; it does not set out a comprehensive regime that displaces domestic law. In sum, the only provision of the Convention that addresses the enforcement of arbitration agreements is Article II(3). We do not read the nonexclusive language of that provision to set a ceiling that tacitly precludes the use of domestic law to enforce arbitration agreements. Thus, nothing in the text of the Convention \"conflict[s] with\" the application of domestic equitable estoppel doctrines permitted under Chapter 1 of the FAA. 9 U. S. C. §208. B \"Because a treaty ratified by the United States is ‘an agreement among sovereign powers,’ we have also considered as ‘aids to its interpretation’ the negotiation and drafting history of the treaty as well as ‘the postratification understanding’ of signatory nations.\" Medellín, 552 U. S., at 507 (quoting Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996)). These aids confirm our interpretation of the Convention’s text. 1 Our precedents have looked to the \"negotiating and drafting history\" of a treaty as an aid in determining the shared understanding of the treaty. Id., at 226. Invoking this interpretive aid, Outokumpu argues that the Convention’s drafting history establishes a \"rule of consent\" that \"displace[s] varying local laws.\" Brief for Respondents 27. We are unpersuaded. For one, nothing in the text of the Convention imposes a \"rule of consent\" that displaces domestic law—let alone a rule that allows some domestic-law doctrines and not others, as Outokumpu proposes. The only time the Convention uses the word \"consent\" is in Article X(3), which addresses ratification and accession procedures. Moreover, the statements relied on by Outokumpu do not address the specific question whether the Convention prohibits the application of domestic law that would allow nonsignatories to compel arbitration. Cherry-picked \"generalization[s]\" from the negotiating and drafting history cannot be used to create a rule that finds no support in the treaty’s text. Zicherman, 516 U. S., at 227. To the extent the drafting history sheds any light on the meaning of the Convention, it shows only that the drafters sought to impose baseline requirements on contracting states. As this Court has recognized, \"[i]n their discussion of [Article II], the delegates to the Convention voiced frequent concern that courts of signatory countries . . . should not be permitted to decline enforcement of such agreements on the basis of parochial views of their desirability or in a manner that would diminish the mutually binding nature of the agreements.\" Scherk, 417 U. S., at 520, n. 15 (citing G. Haight, Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Summary Analysis of Record of United Nations Conference, May/June 1958, pp. 24–28 (1958)). Nothing in the drafting history suggests that the Convention sought to prevent contracting states from applying domestic law that permits nonsignatories to enforce arbitration agreements in additional circumstances. 2 \"[T]he postratification understanding\" of other contracting states may also serve as an aid to our interpretation of a treaty’s meaning. Medellín, 552 U. S., at 507 (internal quotation marks omitted). To discern this understanding, we have looked to the \"[d]ecisions of the courts of other Convention signatories,\" El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 175 (1999), as well as the \"postratification conduct\" of the governments of contracting states, Zicherman, 516 U. S., at 227. Here, the weight of authority from contracting states indicates that the New York Convention does not prohibit the application of domestic law addressing the enforcement of arbitration agreements. The courts of numerous contracting states permit enforcement of arbitration agreements by entities who did not sign an agreement. See 1 G. Born, International Commercial Arbitration §10.02, pp. 1418–1484 (2d ed. 2014) (compiling cases). The United States identifies at least one contracting state with domestic legislation illustrating a similar understanding. See Brief for United States as Amicus Curiae 28 (discussing Peru’s national legislation). And GE Energy points to a recommendation issued by the United Nations Commission on International Trade Law that, although not directly addressing Article II(3), adopts a nonexclusive interpretation of Article II(1) and (2). Report of the United Nations Commission on International Trade Law on the Work of Its Thirty-Ninth Session, Recommendation Regarding the Interpretation of Article II, Paragraph 2, and Article VII, Paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ¶¶1, 2, U. N. Doc. A/61/17, annex II (July 7, 2006) (UN recommendation). These sources, while generally pointing in one direction, are not without their faults. The court decisions, domestic legislation, and UN recommendation relied on by the parties occurred decades after the finalization of the New York Convention’s text in 1958. This diminishes the value of these sources as evidence of the original shared understanding of the treaty’s meaning. Moreover, unlike the actions and decisions of signatory nations, we have not previously relied on UN recommendations to discern the meaning of treaties. See also Yang v. Majestic Blue Fisheries, LLC, 876 F. 3d 996, 1000–1001 (CA9 2017) (declining to give weight to the 2006 UN recommendation). But to the extent this evidence is given any weight, it confirms our interpretation of the Convention’s text. 3 Finally, the parties dispute whether the Executive’s interpretation of the New York Convention should affect our analysis. The United States claims that we should apply a \"‘canon of deference’\" and give \" ‘\"great weight\"’\" to an interpretation set forth by the Executive in an amicus brief submitted to the D. C. Circuit in 2014. Brief for United States as Amicus Curiae 30 (quoting Abbott v. Abbott, 560 U. S. 1, 15 (2010)); see also Brief for United States as Amicus Curiae in No. 13–7004 (CADC), pp. 7, 9. GE Energy echoes this request. Outokumpu, on the other hand, argues that the Executive’s noncontemporaneous interpretation sheds no light on the meaning of the treaty, asserting that the Executive expressed the \"opposite . . . view at the time of the Convention’s adoption.\" Brief for Respondents 33. Outokumpu asserts that this Court has repeatedly rejected executive interpretations that contradict the treaty’s text or the political branches’ previous understanding of a treaty. Id., at 34–35 (citing, e.g., Chan v. Korean Air Lines, Ltd., 490 U. S. 122, 136 (1989) (Brennan, J., concurring in judgment); Perkins v. Elg, 307 U. S. 325, 328, 337–349 (1939)). We have never provided a full explanation of the basis for our practice of giving weight to the Executive’s interpretation of a treaty. Nor have we delineated the limitations of this practice, if any. But we need not resolve these issues today. Our textual analysis aligns with the Executive’s interpretation so there is no need to determine whether the Executive’s understanding is entitled to \"weight\" or \"deference.\" Cf. Edelman v. Lynchburg College, 535 U. S. 106, 114–115, n. 8 (2002) (\"[T]here is no need to resolve deference issues when there is no need for deference\"). IV The Court of Appeals did not analyze whether Article II(3) of the New York Convention conflicts with equitable estoppel. Instead, the court held that Article II(1) and (2) include a \"requirement that the parties actually sign an agreement to arbitrate their disputes in order to compel arbitration.\" 902 F. 3d, at 1326. But those provisions address the recognition of arbitration agreements, not who is bound by a recognized agreement. Article II(1) simply requires contracting states to \"recognize an agreement in writing,\" and Article II(2) defines the term \"agreement in writing.\" Here, the three agreements at issue were both written and signed.3 Only Article II(3) speaks to who may request referral under those agreements, and it does not prohibit the application of domestic law. See supra, at 6–7. Because the Court of Appeals concluded that the Convention prohibits enforcement by nonsignatories, the court did not determine whether GE Energy could enforce the arbitration clauses under principles of equitable estoppel or which body of law governs that determination. Those questions can be addressed on remand. We hold only that the New York Convention does not conflict with the enforcement of arbitration agreements by nonsignatories under domestic-law equitable estoppel doctrines. For the foregoing reasons, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."},
{"docket_number": "17-1268", "syllabus": "In 1998, al Qaeda operatives detonated truck bombs outside the United States Embassies in Kenya and Tanzania. Victims and their family members sued the Republic of Sudan under the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act (FSIA), formerly 28 U. S. C. §1605(a)(7), alleging that Sudan had assisted al Qaeda in perpetrating the attacks. At the time, the plaintiffs faced §1606’s bar on punitive damages for suits proceeding under any of the §1605 sovereign immunity exceptions. In 2008, Congress amended the FSIA in the National Defense Authorization Act (NDAA). 122 Stat. 3. In NDAA §1083(a), Congress moved §1605(a)(7) to a new section and created an express federal cause of action for acts of terror that also provided for punitive damages. See §1605A(c). In §1083(c)(2), it gave effect to existing lawsuits that had been \"adversely affected\" by prior law \"as if\" they had been originally filed under the new §1605A(c). And in §1083(c)(3), it provided a time-limited opportunity for plaintiffs to file new actions \"arising out of the same act or incident\" as an earlier action and claim §1605A’s benefits. Following these amendments, the original plaintiffs amended their complaint to include the new federal cause of action under §1605A(c), and hundreds of others filed new, similar claims. The district court entered judgment for the plaintiffs and awarded approximately $10.2 billion in damages, including roughly $4.3 billion in punitive damages. As relevant here, the court of appeals held that the plaintiffs were not entitled to punitive damages because Congress had included no statement in NDAA §1083 clearly authorizing punitive damages for preenactment conduct. Held: Plaintiffs in a federal cause of action under §1605A(c) may seek punitive damages for preenactment conduct. Even assuming (without granting) that Sudan may claim the benefit of the presumption of prospectivity—the assumption that Congress means its legislation to apply only to future conduct, see Landgraf v. USI Film Products, 511 U. S. 244—Congress was as clear as it could have been when it expressly authorized punitive damages under §1605A(c) and explicitly made that new cause of action available to remedy certain past acts of terrorism. Sudan stresses that §1083(c) does not itself contain an express authorization of punitive damages. It does admit that §1083(c) authorizes plaintiffs to bring §1605A(c) claims for preenactment conduct. And it does concede that §1605A(c) allows for damages that \"may include economic damages, solatium, [and] pain and suffering\" for preenactment conduct. That list in the statute also \"include[s] . . . punitive damages,\" and no plausible account of §1083(c) could be clear enough to authorize the retroactive application of all other §1605A(c) features except punitive damages. Sudan also contends that §1605A(c)’s wording \"may include . . . punitive damages\" fails the clarity test. But \"‘the word \"may\" clearly connotes discretion,’ \" Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U. S. ___, ___, and simply vests district courts with discretion to determine whether punitive damages are appropriate. In addition, all of the categories of special damages mentioned in §1605A(c) are provided on equal terms. Finally, Sudan suggests that a super-clarity rule should apply here because retroactive punitive damages raise special constitutional concerns. Such an interpretative rule is not reasonably administrable. This Court declines to resolve other matters raised by the parties outside the question presented. But having decided that punitive damages are permissible for federal claims and that the reasons the court of appeals offered for its contrary decision were mistaken, it follows that the court of appeals must also reconsider its decision concerning the availability of punitive damages for claims proceeding under state law. Pp. 6–12. 864 F. 3d 751, vacated and remanded.", "opinion": "In 1998, al Qaeda operatives simultaneously detonated truck bombs outside the United States Embassies in Kenya and Tanzania. Hundreds died, thousands were injured. In time, victims and their family members sued the Republic of Sudan in federal court, alleging that it had assisted al Qaeda in perpetrating the attacks. After more than a decade of motions practice, intervening legislative amendments, and a trial, the plaintiffs proved Sudan’s role in the attacks and established their entitlement to compensatory and punitive damages. On appeal, however, Sudan argued, and the court agreed, that the Foreign Sovereign Immunities Act barred the punitive damages award. It is that decision we now review and, ultimately, vacate. The starting point for nearly any dispute touching on foreign sovereign immunity lies in Schooner Exchange v. McFaddon, 7 Cranch 116 (1812). There, Chief Justice Marshall explained that foreign sovereigns do not enjoy an inherent right to be held immune from suit in American courts: \"The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.\" Id., at 136. Still, Chief Justice Marshall continued, many countries had declined to exercise jurisdiction over foreign sovereigns in cases involving foreign ministers and militaries. Id., at 137–140. And, accepting a suggestion from the Executive Branch, the Court agreed as a matter of comity to extend that same immunity to a foreign sovereign in the case at hand. Id., at 134, 145–147. For much of our history, claims of foreign sovereign immunity were handled on a piecework basis that roughly paralleled the process in Schooner Exchange. Typically, after a plaintiff sought to sue a foreign sovereign in an American court, the Executive Branch, acting through the State Department, filed a \"suggestion of immunity\"—case-specific guidance about the foreign sovereign’s entitlement to immunity. See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 487 (1983). Because foreign sovereign immunity is a matter of \"grace and comity,\" Republic of Austria v. Altmann, 541 U. S. 677, 689 (2004), and so often implicates judgments the Constitution reserves to the political branches, courts \"consistently . . . deferred\" to these suggestions. Verlinden, 461 U. S., at 486. Eventually, though, this arrangement began to break down. In the mid-20th century, the State Department started to take a more restrictive and nuanced approach to foreign sovereign immunity. See id., at 486–487. Sometimes, too, foreign sovereigns neglected to ask the State Department to weigh in, leaving courts to make immunity decisions on their own. See id., at 487–488. \"Not surprisingly\" given these developments, \"the governing standards\" for foreign sovereign immunity determinations over time became \"neither clear nor uniformly applied.\" Id., at 488. In 1976, Congress sought to remedy the problem and address foreign sovereign immunity on a more comprehensive basis. The result was the Foreign Sovereign Immunities Act (FSIA). As a baseline rule, the FSIA holds foreign states and their instrumentalities immune from the jurisdiction of federal and state courts. See 28 U. S. C. §§1603(a), 1604. But the law also includes a number of exceptions. See, e.g., §§1605, 1607. Of particular relevance today is the terrorism exception Congress added to the law in 1996. That exception permits certain plaintiffs to bring suits against countries who have committed or supported specified acts of terrorism and who are designated by the State Department as state sponsors of terror. Still, as originally enacted, the exception shielded even these countries from the possibility of punitive damages. See Antiterrorism and Effective Death Penalty Act of 1996 (codifying statesponsored terrorism exception at 28 U. S. C. §1605(a)(7)); §1606 (generally barring punitive damages in suits proceeding under any of §1605’s sovereign immunity exceptions). Two years after Congress amended the FSIA, al Qaeda attacked the U. S. Embassies in Kenya and Tanzania. In response, a group of victims and affected family members led by James Owens sued Sudan in federal district court, invoking the newly adopted terrorism exception and alleging that Sudan had provided shelter and other material support to al Qaeda. As the suit progressed, however, a question emerged. In its recent amendments, had Congress merely withdrawn immunity for state-sponsored terrorism, allowing plaintiffs to proceed using whatever pre-existing causes of action might be available to them? Or had Congress gone further and created a new federal cause of action to address terrorism? Eventually, the D. C. Circuit held that Congress had only withdrawn immunity without creating a new cause of action. See Cicippio-Puelo v. Islamic Republic of Iran, 353 F. 3d 1024, 1033 (2004). In response to that and similar decisions, Congress amended the FSIA again in the National Defense Authorization Act for Fiscal Year 2008 (NDAA), 122 Stat. 338. Four changes, all found in a single section, bear mention here. First, in §1083(a) of the NDAA, Congress moved the statesponsored terrorism exception from its original home in §1605(a)(7) to a new section of the U. S. Code, 28 U. S. C. §1605A. This had the effect of freeing claims brought under the terrorism exception from the FSIA’s usual bar on punitive damages. See §1606 (denying punitive damages in suits proceeding under a sovereign immunity exception found in §1605 but not §1605A). Second, also in §1083(a), Congress created an express federal cause of action for acts of terror. This new cause of action, codified at 28 U. S. C. §1605A(c), is open to plaintiffs who are U. S. nationals, members of the Armed Forces, U. S. government employees or contractors, and their legal representatives, and it expressly authorizes punitive damages. Third, in §1083(c)(2) of the NDAA, a provision titled \"Prior Actions,\" Congress addressed existing lawsuits that had been \"adversely affected on the groun[d] that\" prior law \"fail[ed] to create a cause of action against the state.\" Actions like these, Congress instructed, were to be given effect \"as if \" they had been originally filed under §1605A(c)’s new federal cause of action. Finally, in §1083(c)(3) of the NDAA, a provision titled \"Related Actions,\" Congress provided a time-limited opportunity for plaintiffs to file new actions \"arising out of the same act or incident\" as an earlier action and claim the benefits of 28 U. S. C. §1605A. Following these amendments, the Owens plaintiffs amended their complaint to include the new federal cause of action, and hundreds of additional victims and family members filed new claims against Sudan similar to those in Owens. Some of these new plaintiffs were U. S. nationals or federal government employees or contractors who sought relief under the new §1605A(c) federal cause of action. But others were the foreign-national family members of U. S. government employees or contractors killed or injured in the attacks. Ineligible to invoke §1605A(c)’s new federal cause of action, these plaintiffs relied on §1605A(a)’s state-sponsored terrorism exception to overcome Sudan’s sovereign immunity and then advance claims sounding in state law. After a consolidated bench trial in which Sudan declined to participate, the district court entered judgment in favor of the plaintiffs. District Judge John Bates offered detailed factual findings explaining that Sudan had knowingly served as a safe haven near the two United States Embassies and allowed al Qaeda to plan and train for the attacks. The court also found that Sudan had provided hundreds of Sudanese passports to al Qaeda, allowed al Qaeda operatives to travel over the Sudan-Kenya border without restriction, and permitted the passage of weapons and money to supply al Qaeda’s cell in Kenya. See Owens v. Republic of Sudan, 826 F. Supp. 2d 128, 139–146 (DC 2011). The question then turned to damages. Given the extensive and varied nature of the plaintiffs’ injuries, the court appointed seven Special Masters to aid its factfinding. Over more than two years, the Special Masters conducted individual damages assessments and submitted written reports. Based on these reports, and after adding a substantial amount of prejudgment interest to account for the many years of delay, the district court awarded a total of approximately $10.2 billion in damages, including roughly $4.3 billion in punitive damages to plaintiffs who had brought suit in the wake of the 2008 amendments. At that point, Sudan decided to appear and appeal. Among other things, Sudan sought to undo the district court’s punitive damages award. Generally, Sudan argued, Congress may create new forms of liability for past conduct only by clearly stating its intention to do so. And, Sudan continued, when Congress passed the NDAA in 2008, it nowhere clearly authorized punitive damages for anything countries like Sudan might have done in the 1990s. The court of appeals agreed. It started by addressing the plaintiffs who had proceeded under the new federal cause of action in §1605A(c). The court noted that, in passing the NDAA, Congress clearly authorized individuals to use the Prior Actions and Related Actions provisions to bring new federal claims attacking past conduct. Likewise, the law clearly allowed these plaintiffs to collect compensatory damages for their claims. But, the court held, Congress included no statement clearly authorizing punitive damages for pre-enactment conduct. See Owens v. Republic of Sudan, 864 F. 3d 751, 814–817 (CADC 2017). Separately but for essentially the same reasons, the court held that the foreign-national family member plaintiffs who had proceeded under state-law causes of action were also barred from seeking and obtaining punitive damages. Id., at 817. The petitioners responded by asking this Court to review the first of these rulings and decide whether the 2008 NDAA amendments permit plaintiffs proceeding under the federal cause of action in §1605A(c) to seek and win punitive damages for past conduct. We agreed to resolve that question. 588 U. S. ___ (2019). * The principle that legislation usually applies only prospectively \"is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.\" Landgraf v. USI Film Products, 511 U. S. 244, 265 (1994). This principle protects vital due process interests, ensuring that \"individuals . . . have an opportunity to know what the law is\" before they act, and may rest assured after they act that their lawful conduct cannot be second-guessed later. Ibid. The principle serves vital equal protection interests as well: If legislative majorities could too easily make new laws with retroactive application, disfavored groups could become easy targets for discrimination, with their past actions visible and unalterable. See id., at 266–267. No doubt, reasons like these are exactly why the Constitution discourages retroactive lawmaking in so many ways, from its provisions prohibiting ex post facto laws, bills of attainder, and laws impairing the obligations of contracts, to its demand that any taking of property be accompanied by just compensation. See id., at 266. Still, Sudan doesn’t challenge the constitutionality of the 2008 NDAA amendments on these or any other grounds— the arguments we confront today are limited to the field of statutory interpretation. But, as both sides acknowledge, the principle of legislative prospectivity plays an important role here too. In fact, the parties devote much of their briefing to debating exactly how that principle should inform our interpretation of the NDAA. For its part, Sudan points to Landgraf. There, the Court observed that, \"in decisions spanning two centuries,\" we have approached debates about statutory meaning with an assumption that Congress means its legislation to respect the principle of prospectivity and apply only to future conduct—and that, if and when Congress wishes to test its power to legislate retrospectively, it must say so \"clear[ly].\" Id., at 272. All this is important, Sudan tells us, because when we look to the NDAA we will find no clear statement allowing courts to award punitive damages for past conduct. But if Sudan focuses on the rule, the petitioners highlight an exception suggested by Altmann. Because foreign sovereign immunity is a gesture of grace and comity, Altmann reasoned, it is also something that may be withdrawn retroactively without the same risk to due process and equal protection principles that other forms of backward-looking legislation can pose. Foreign sovereign immunity’s \"principal purpose,\" after all, \"has never been to permit foreign states . . . to shape their conduct in reliance on the promise of future immunity from suit in United States courts.\" 541 U. S., at 696. Thus, Altmann held, \"[i]n th[e] sui generis context [of foreign sovereign immunity], . . . it [is] more appropriate, absent contraindications, to defer to the most recent decision [of the political branches] than to presume that decision inapplicable merely because it postdates the conduct in question.\" Ibid. And, the petitioners stress, once the presumption of prospectivity is swept away, the NDAA is easily read to authorize punitive damages for completed conduct. Really, this summary only begins to scratch the surface of the parties’ debate. Sudan replies that it may be one thing to retract immunity retroactively consistent with Altmann, because all that does is open a forum to hear an otherwise available legal claim. But it is another thing entirely to create new rules regulating primary conduct and impose them retroactively. When Congress wishes to do that, Sudan says, it must speak just as clearly as Landgraf commanded. And, Sudan adds, the NDAA didn’t simply open a new forum to hear a pre-existing claim; it also created a new cause of action governing completed conduct that the petitioners now seek to exploit. Cf. Altmann, 541 U. S., at 702– 704 (Scalia, J., concurring). In turn, the petitioners retort that Altmann itself might have concerned whether a new forum could hear an otherwise available and pre-existing claim, but its reasoning went further. According to the petitioners, the decision also strongly suggested that the presumption of prospectivity does not apply at all when it comes to suits against foreign sovereigns, full stop. These points and more the parties develop through much of their briefing before us. As we see it, however, there is no need to resolve the parties’ debate over interpretive presumptions. Even if we assume (without granting) that Sudan may claim the benefit of Landgraf ’s presumption of prospectivity, Congress was as clear as it could have been when it authorized plaintiffs to seek and win punitive damages for past conduct using §1065A(c)’s new federal cause of action. After all, in §1083(a), Congress created a federal cause of action that expressly allows suits for damages that \"may include economic damages, solatium, pain and suffering, and punitive damages.\" (Emphasis added.) This new cause of action was housed in a new provision of the U. S. Code, 28 U. S. C. §1605A, to which the FSIA’s usual prohibition on punitive damages does not apply. See §1606. Then, in §§1083(c)(2) and (c)(3) of the very same statute, Congress allowed certain plaintiffs in \"Prior Actions\" and \"Related Actions\" to invoke the new federal cause of action in §1605A. Both provisions specifically authorized new claims for pre-enactment conduct. Put another way, Congress proceeded in two equally evident steps: (1) It expressly authorized punitive damages under a new cause of action; and (2) it explicitly made that new cause of action available to remedy certain past acts of terrorism. Neither step presents any ambiguity, nor is the NDAA fairly susceptible to any competing interpretation. Sudan’s primary rejoinder only serves to underscore the conclusion. Like the court of appeals before it, Sudan stresses that §1083(c) itself contains no express authorization of punitive damages. But it’s hard to see what difference that makes. Sudan admits that §1083(c) authorizes plaintiffs to bring claims under §1605A(c) for acts committed before the 2008 amendments. Sudan concedes, too, that §1605A(c) authorizes plaintiffs to seek and win \"economic damages, solatium, [and] pain and suffering,\" for preenactment conduct. In fact, except for the two words \"punitive damages,\" Sudan accepts that every other jot and tittle of §1605A(c) applies to actions properly brought under §1083(c) for past conduct. And we can see no plausible account on which §1083(c) could be clear enough to authorize the retroactive application of all other features of §1605A(c), just not these two words. Sudan next contends that §1605A(c) fails to authorize retroactive punitive damages with sufficient clarity because it sounds equivocal—the provision says only that awards \"may\" include punitive damages. But this language simply vests district courts with discretion to determine whether punitive damages are appropriate in view of the facts of a particular case. As we have repeatedly observed when discussing remedial provisions using similar language, \"the ‘word \"may\" clearly connotes discretion.’\" Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U. S. ___, ___ (2016) (slip op., at 8) (quoting Martin v. Franklin Capital Corp., 546 U. S. 132, 136 (2005), in turn quoting Fogerty v. Fantasy, Inc., 510 U. S. 517, 533 (1994); emphasis added). What’s more, all of the categories of special damages mentioned in §1605A(c) are provided on equal terms: \"[D]amages may include economic damages, solatium, pain and suffering, and punitive damages.\" (Emphasis added.) Sudan admits that the statute vests the district court with discretion to award the first three kinds of damages for preenactment conduct—and the same can be no less true when it comes to the fourth. That takes us to Sudan’s final argument. Maybe Congress did act clearly when it authorized a new cause of action and other forms of damages for past conduct. But because retroactive damages of the punitive variety raise special constitutional concerns, Sudan says, we should create and apply a new rule requiring Congress to provide a super-clear statement when it wishes to authorize their use. We decline this invitation. It’s true that punitive damages aren’t merely a form a compensation but a form of punishment, and we don’t doubt that applying new punishments to completed conduct can raise serious constitutional questions. See Landgraf, 511 U. S., at 281. But if Congress clearly authorizes retroactive punitive damages in a manner a litigant thinks unconstitutional, the better course is for the litigant to challenge the law’s constitutionality, not ask a court to ignore the law’s manifest direction. Besides, when we fashion interpretive rules, we usually try to ensure that they are reasonably administrable, comport with linguistic usage and expectations, and supply a stable backdrop against which Congress, lower courts, and litigants may plan and act. See id., at 272–273. And Sudan’s proposal promises more nearly the opposite: How much clearer-than-clear should we require Congress to be when authorizing the retroactive use of punitive damages? Sudan doesn’t even try to say, except to assure us it knows a super-clear statement when it sees it, and can’t seem to find one here. That sounds much less like an administrable rule of law than an appeal to the eye of the beholder. * With the question presented now resolved, both sides ask us to tackle other matters in this long-running litigation. Perhaps most significantly, the petitioners include a postscript asking us to decide whether Congress also clearly authorized retroactive punitive damages in claims brought by foreign-national family members under state law using §1605A(a)’s exception to sovereign immunity. Sudan insists that, if we take up that question, we must account for the fact that §1605A(a), unlike §1605A(c), does not expressly discuss punitive damages. And in fairness, Sudan contends, we should also resolve whether litigants may invoke state law at all, in light of the possibility that §1605A(c) now supplies the exclusive cause of action for claims involving state-sponsored acts of terror. We decline to resolve these or other matters outside the question presented. The petitioners chose to limit their petition to the propriety of punitive damages under the federal cause of action in §1605A(c). See Pet. for Cert. i. The Solicitor General observed this limitation in the question presented at the petition stage. See Brief for United States as Amicus Curiae 19, n. 8. The parties’ briefing and argument on matters outside the question presented has been limited, too, and we think it best not to stray into new terrain on the basis of such a meager invitation and with such little assistance. Still, we acknowledge one implication that necessarily follows from our holding today. The court of appeals refused to allow punitive damages awards for foreign-national family members proceeding under state law for \"the same reason\" it refused punitive damages for the plaintiffs proceeding under §1605A(c)’s federal cause of action. 864 F. 3d, at 818. The court stressed that it would be \"puzzling\" if punitive damages were permissible for state claims but not federal ones. Id., at 817. Having now decided that punitive damages are permissible for federal claims, and that the reasons the court of appeals offered for its contrary decision were mistaken, it follows that the court of appeals must also reconsider its decision concerning the availability of punitive damages for claims proceeding under state law. The judgment of the court of appeals with respect to punitive damages is vacated. The case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "18-1086", "syllabus": "Petitioners (collectively Lucky Brand) and respondent (Marcel) both use the word \"Lucky\" as part of their marks on jeans and other apparel. Marcel received a trademark registration for the phrase \"Get Lucky,\" and Lucky Brand uses the registered trademark \"Lucky Brand\" and other marks with the word \"Lucky.\" This has led to nearly 20 years of litigation, proceeding in three rounds. The first round resulted in a 2003 settlement agreement in which Lucky Brand agreed to stop using the phrase \"Get Lucky\" and Marcel agreed to release any claims regarding Lucky Brand’s use of its own trademarks. In the second round (2005 Action), Lucky Brand sued Marcel and its licensee for violating its trademarks. Marcel filed several counterclaims turning, as relevant here, on Lucky Brand’s alleged continued use of \"Get Lucky,\" but it did not claim that Lucky Brand’s use of its own marks alone infringed the \"Get Lucky\" mark. In both a motion to dismiss the counterclaims and an answer to them, Lucky Brand argued that the counterclaims were barred by the settlement agreement, but it did not invoke that defense later in the proceedings. The court in the 2005 Action permanently enjoined Lucky Brand from copying or imitating Marcel’s \"Get Lucky\" mark, and a jury found against Lucky Brand on Marcel’s remaining counterclaims. In the third round (2011 Action), Marcel sued Lucky Brand for continuing to infringe the \"Get Lucky\" mark, but it did not reprise its 2005 allegation about Lucky Brand’s use of the \"Get Lucky\" phrase. After protracted litigation, Lucky Brand moved to dismiss, arguing—for the first time since early in the 2005 Action—that Marcel had released its claims in the settlement agreement. Marcel countered that Lucky Brand could not invoke the release defense because it could have pursued that defense in the 2005 Action but did not. The District Court granted Lucky Brand’s motion to dismiss. The Second Circuit vacated and remanded, concluding that \"defense preclusion\" prohibited Lucky Brand from raising an unlitigated defense that it should have raised earlier. Held: Because Marcel’s 2011 Action challenged different conduct—and raised different claims—from the 2005 Action, Marcel cannot preclude Lucky Brand from raising new defenses. Pp. 6–12. (a) This case asks whether so-called \"defense preclusion\" is a valid application of res judicata: a term comprising the doctrine of issue preclusion, which precludes a party from relitigating an issue actually decided in a prior action and necessary to the judgment, and the doctrine of claim preclusion, which prevents parties from raising issues that could have been raised and decided in a prior action. Any preclusion of defenses must, at a minimum, satisfy the strictures of issue preclusion or claim preclusion. See, e.g., Davis v. Brown, 94 U. S. 423, 428. Here, issue preclusion does not apply, so the causes of action must share a \"common nucleus of operative fact[s]\" for claim preclusion to apply, Restatement (Second) of Judgments §24, Comment b, p. 199. Pp. 6–8. (b) Because the two suits here involved different marks and different conduct occurring at different times, they did not share a \"common nucleus of operative facts.\" The 2005 claims depended on Lucky Brand’s alleged use of \"Get Lucky.\" But in the 2011 Action, Marcel alleged that the infringement was Lucky Brand’s use of its other marks containing the word \"Lucky,\" not any use of \"Get Lucky\" itself. The conduct in the 2011 Action also occurred after the conclusion of the 2005 Action. But claim preclusion generally \" ‘does not bar claims that are predicated on events that postdate the filing of the initial complaint,’ \" Whole Woman’s Health v. Hellerstedt, 579 U. S. ___, ___, because events occurring after a plaintiff files suit often give rise to new \"operative facts\" creating a new claim to relief. Pp. 8–10. (c) Marcel claims that treatises and this Court’s cases support a version of \"defense preclusion\" that extends to the facts of this case. But none of those authorities describe scenarios applicable here, and they are unlikely to stand for anything more than that traditional claim or issue preclusion principles may bar defenses raised in a subsequent suit—principles that do not bar Lucky Brand’s release defense here. Pp. 10–12. 898 F. 3d 232, reversed and remanded.", "opinion": "This case arises from protracted litigation between petitioners Lucky Brand Dungarees, Inc., and others (collectively Lucky Brand) and respondent Marcel Fashions Group, Inc. (Marcel). In the latest lawsuit between the two, Lucky Brand asserted a defense against Marcel that it had not pressed fully in a preceding suit between the parties. This Court is asked to determine whether Lucky Brand’s failure to litigate the defense in the earlier suit barred Lucky Brand from invoking it in the later suit. Because the parties agree that, at a minimum, the preclusion of such a defense in this context requires that the two suits share the same claim to relief—and because we find that the two suits here did not—Lucky Brand was not barred from raising its defense in the later action. I Marcel and Lucky Brand both sell jeans and other apparel. Both entities also use the word \"Lucky\" as part of their marks on clothing. In 1986, Marcel received a federal trademark registration for \"Get Lucky\"; a few years later, in 1990, Lucky Brand began selling apparel using the registered trademark \"Lucky Brand\" and other marks that include the word \"Lucky.\" 779 F. 3d 102, 105 (CA2 2015). Three categories of marks are at issue in this case: Marcel’s \"Get Lucky\" mark; Lucky Brand’s \"Lucky Brand\" mark; and various other marks owned by Lucky Brand that contain the word \"Lucky.\" These trademarks have led to nearly 20 years of litigation between the two companies, proceeding in three rounds. A In 2001—the first round—Marcel sued Lucky Brand, alleging that Lucky Brand’s use of the phrase \"Get Lucky\" in advertisements infringed Marcel’s trademark. In 2003, the parties signed a settlement agreement. As part of the deal, Lucky Brand agreed to stop using the phrase \"Get Lucky.\" App. 191. In exchange, Marcel agreed to release any claims regarding Lucky Brand’s use of its own trademarks. Id., at 191–192. B The ink was barely dry on the settlement agreement when, in 2005, the parties began a second round of litigation (2005 Action). Lucky Brand filed suit, alleging that Marcel and its licensee violated its trademarks by copying its designs and logos in a new clothing line. As relevant here, Marcel filed several counterclaims that all turned, in large part, on Lucky Brand’s alleged continued use of \"Get Lucky\": One batch of allegations asserted that Lucky Brand had continued to use Marcel’s \"Get Lucky\" mark in violation of the settlement agreement, while others alleged that Lucky Brand’s use of the phrase \"Get Lucky\" and \"Lucky Brand\" together was \"confusingly similar to\"—and thus infringed––Marcel’s \"Get Lucky\" mark. Defendants’ Answer, Affirmative Defenses, and Counterclaims to Plaintiffs’ Complaint in No. 1:05–cv–06757 (SDNY), Doc. 40–2, p. 39; see id., at 34–41. None of Marcel’s counterclaims alleged that Lucky Brand’s use of its own marks alone—i.e., independent of any alleged use of \"Get Lucky\"—infringed Marcel’s \"Get Lucky\" mark. Lucky Brand moved to dismiss the counterclaims, alleging that they were barred by the release provision of the settlement agreement. After the District Court denied the motion without prejudice, Lucky Brand noted the release defense once more in its answer to Marcel’s counterclaims. But as the 2005 Action proceeded, Lucky Brand never again invoked the release defense. The 2005 Action concluded in two phases. First, as a sanction for misconduct during discovery, the District Court concluded that Lucky Brand violated the settlement agreement by continuing to use \"Get Lucky\" and permanently enjoined Lucky Brand from copying or imitating Marcel’s \"Get Lucky\" mark. Order Granting Partial Summary Judgment and Injunction in No. 1:05–cv–06757, Doc. 183; see also App. 203–204. The injunction did not enjoin, or even mention, Lucky Brand’s use of any other marks or phrases containing the word \"Lucky.\" Order Granting Partial Summary Judgment and Injunction, Doc. 183. The case then proceeded to trial. The jury found against Lucky Brand on Marcel’s remaining counterclaims—those that alleged infringement from Lucky Brand’s continued use of the \"Get Lucky\" catchphrase alongside its own marks. See Brief for Respondent 52. C In April 2011, the third round of litigation began: Marcel filed an action against Lucky Brand (2011 Action), maintaining that Lucky Brand continued to infringe Marcel’s \"Get Lucky\" mark and, in so doing, contravened the judgment issued in the 2005 Action. This complaint did not reprise Marcel’s earlier allegation (in the 2005 Action) that Lucky Brand continued to use the \"Get Lucky\" phrase. Marcel argued only that Lucky Brand’s continued, post-2010 use of Lucky Brand’s own marks—some of which used the word \"Lucky\"—infringed Marcel’s \"Get Lucky\" mark in a manner that (according to Marcel) was previously found infringing.1 Marcel requested that the District Court enjoin Lucky Brand from using any of Lucky Brand’s marks containing the word \"Lucky.\" The District Court granted Lucky Brand summary judgment, concluding that Marcel’s claims in the 2011 Action were essentially the same as its counterclaims in the 2005 Action. But the Court of Appeals for the Second Circuit disagreed. 779 F. 3d 102. The court concluded that Marcel’s claims in the 2011 Action were distinct from those it had asserted in the 2005 Action, because the claims at issue in the 2005 Action were \"for earlier infringements.\" Id., at 110. As the court noted, \"[w]inning a judgment . . . does not deprive the plaintiff of the right to sue\" for the defendant’s \"subsequent similar violations.\" Id., at 107. The Second Circuit further rejected Marcel’s request to hold Lucky Brand in contempt for violating the injunction issued in the 2005 Action. The court noted that the conduct at issue in the 2011 Action was Lucky Brand’s use of its own marks—not the use of the phrase \"Get Lucky.\" By contrast, the 2005 injunction prohibited Lucky Brand from using the \"Get Lucky\" mark—not Lucky Brand’s own marks that happened to contain the word \"Lucky.\" Id., at 111. Moreover, the court reasoned that the jury in the 2005 Action had been \"free to find infringement of Marcel’s ‘Get Lucky’ mark based solely on Lucky Brand’s use of [the phrase] ‘Get Lucky.’\" Id., at 112. The court vacated and remanded for further proceedings. On remand to the District Court, Lucky Brand moved to dismiss, arguing—for the first time since its motion to dismiss and answer in the 2005 Action—that Marcel had released its claims by entering the settlement agreement. Marcel countered that Lucky Brand was precluded from invoking the release defense, because it could have pursued the defense fully in the 2005 Action but had neglected to do so. The District Court granted Lucky Brand’s motion to dismiss, holding that it could assert its release defense and that the settlement agreement indeed barred Marcel’s claims. The Second Circuit vacated and remanded, concluding that a doctrine it termed \"defense preclusion\" prohibited Lucky Brand from raising the release defense in the 2011 Action. 898 F. 3d 232 (2018). Noting that a different category of preclusion—issue preclusion—may be wielded against a defendant, see Parklane Hosiery Co. v. Shore, 439 U. S. 322 (1979), the court reasoned that the same should be true of claim preclusion: A defendant should be precluded from raising an unlitigated defense that it should have raised earlier. The panel then held that \"defense preclusion\" bars a party from raising a defense where: \"(i) a previous action involved an adjudication on the merits\"; \"(ii) the previous action involved the same parties\"; \"(iii) the defense was either asserted or could have been asserted, in the prior action\"; and \"(iv) the district court, in its discretion, concludes that preclusion of the defense is appropriate.\" 898 F. 3d, at 241. Finding each factor satisfied in this case, the panel vacated the District Court’s judgment. We granted certiorari, 588 U. S. ___ (2019), to resolve differences among the Circuits regarding when, if ever, claim preclusion applies to defenses raised in a later suit. Compare 898 F. 3d, at 241, with Hallco Mfg. Co. v. Foster, 256 F. 3d 1290, 1297–1298 (CA Fed. 2001); McKinnon v. Blue Cross and Blue Shield of Alabama, 935 F. 2d 1187, 1192 (CA11 1991). II A This case asks whether so-called \"defense preclusion\" is a valid application of res judicata: a term that now comprises two distinct doctrines regarding the preclusive effect of prior litigation. 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4402 (3d ed. 2016) (Wright & Miller). The first is issue preclusion (sometimes called collateral estoppel), which precludes a party from relitigating an issue actually decided in a prior case and necessary to the judgment. Allen v. McCurry, 449 U. S. 90, 94 (1980); see Parklane Hosiery, 439 U. S., at 326, n. 5. The second doctrine is claim preclusion (sometimes itself called res judicata). Unlike issue preclusion, claim preclusion prevents parties from raising issues that could have been raised and decided in a prior action—even if they were not actually litigated. If a later suit advances the same claim as an earlier suit between the same parties, the earlier suit’s judgment \"prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.\" Brown v. Felsen, 442 U. S. 127, 131 (1979); see also Wright & Miller §4407. Suits involve the same claim (or \"cause of action\") when they \"‘aris[e] from the same transaction,’\" United States v. Tohono O’odham Nation, 563 U. S. 307, 316 (2011) (quoting Kremer v. Chemical Constr. Corp., 456 U. S. 461, 482, n. 22 (1982)), or involve a \"common nucleus of operative facts,\" Restatement (Second) of Judgments §24, Comment b, p. 199 (1982) (Restatement (Second)). Put another way, claim preclusion \"describes the rules formerly known as ‘merger’ and ‘bar.’\" Taylor v. Sturgell, 553 U. S. 880, 892, n. 5 (2008). \"If the plaintiff wins, the entire claim is merged in the judgment; the plaintiff cannot bring a second independent action for additional relief, and the defendant cannot avoid the judgment by offering new defenses.\" Wright & Miller §4406. But \"[i]f the second lawsuit involves a new claim or cause of action, the parties may raise assertions or defenses that were omitted from the first lawsuit even though they were equally relevant to the first cause of action.\" Ibid. As the Second Circuit itself seemed to recognize, see 898 F. 3d, at 236–237, this Court has never explicitly recognized \"defense preclusion\" as a standalone category of res judicata, unmoored from the two guideposts of issue preclusion and claim preclusion. Instead, our case law indicates that any such preclusion of defenses must, at a minimum, satisfy the strictures of issue preclusion or claim preclusion. See, e.g., Davis v. Brown, 94 U. S. 423, 428 (1877) (holding that where two lawsuits involved different claims, preclusion operates \"only upon the matter actually at issue and determined in the original action\").2 The parties thus agree that where, as here, issue preclusion does not apply, a defense can be barred only if the \"causes of action are the same\" in the two suits—that is, where they share a \"‘common nucleus of operative fact[s].’\" Brief for Respondent 2, 27, 31, 50; accord, Reply Brief 3. B Put simply, the two suits here were grounded on different conduct, involving different marks, occurring at different times. They thus did not share a \"common nucleus of operative facts.\" Restatement (Second) §24, Comment b, at 199. To start, claims to relief may be the same for the purposes of claim preclusion if, among other things, \"‘a different judgment in the second action would impair or destroy rights or interests established by the judgment entered in the first action.’\" Wright & Miller §4407. Here, however, the 2011 Action did not imperil the judgment of the 2005 Action because the lawsuits involved both different conduct and different trademarks. In the 2005 Action, Marcel alleged that Lucky Brand infringed Marcel’s \"Get Lucky\" mark both by directly imitating its \"Get Lucky\" mark and by using the \"Get Lucky\" slogan alongside Lucky Brand’s other marks in a way that created consumer confusion. Brief for Respondent 52. Marcel appears to admit, thus, that its claims in the 2005 Action depended on Lucky Brand’s alleged use of \"Get Lucky.\" Id., at 9–10 (\"Marcel’s reverse-confusion theory [in the 2005 Action] depended, in part, on Lucky’s continued imitation of the GET LUCKY mark\"). By contrast, the 2011 Action did not involve any alleged use of the \"Get Lucky\" phrase. Indeed, Lucky Brand had been enjoined in the 2005 Action from using \"Get Lucky,\" and in the 2011 Action, Lucky Brand was found not to have violated that injunction. 779 F. 3d, at 111–112. The parties thus do not argue that Lucky Brand continued to use \"Get Lucky\" after the 2005 Action concluded, and at oral argument, counsel for Marcel appeared to confirm that Marcel’s claims in the 2011 Action did not allege that Lucky Brand continued to use \"Get Lucky.\" Tr. of Oral Arg. 46. Instead, Marcel alleged in the 2011 Action that Lucky Brand committed infringement by using Lucky Brand’s own marks containing the word \"Lucky\"—not the \"Get Lucky\" mark itself. Plainly, then, the 2011 Action challenged different conduct, involving different marks. Not only that, but the complained-of conduct in the 2011 Action occurred after the conclusion of the 2005 Action. Claim preclusion generally \"does not bar claims that are predicated on events that postdate the filing of the initial complaint.\" Whole Woman’s Health v. Hellerstedt, 579 U. S. ___, ___ (2016) (slip op., at 12) (internal quotation marks omitted); Lawlor v. National Screen Service Corp., 349 U. S. 322, 327–328 (1955) (holding that two suits were not \"based on the same cause of action,\" because \"[t]he conduct presently complained of was all subsequent to\" the prior judgment and it \"cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case\"). This is for good reason: Events that occur after the plaintiff files suit often give rise to new \"[m]aterial operative facts\" that \"in themselves, or taken in conjunction with the antecedent facts,\" create a new claim to relief. Restatement (Second) §24, Comment f, at 203; 18 J. Moore, D. Coquillette, G. Joseph, G. Vairo, & C. Varner, Federal Practice §131.22[1], p. 131–55, n. 1 (3d ed. 2019) (citing cases where \"[n]ew facts create[d a] new claim\"). This principle takes on particular force in the trademark context, where the enforceability of a mark and likelihood of confusion between marks often turns on extrinsic facts that change over time. As Lucky Brand points out, liability for trademark infringement turns on marketplace realities that can change dramatically from year to year. Brief for Petitioners 42–45. It is no surprise, then, that the Second Circuit held that Marcel’s 2011 Action claims were not barred by the 2005 Action. By the same token, the 2005 Action could not bar Lucky Brand’s 2011 defenses. At bottom, the 2011 Action involved different marks, different legal theories, and different conduct—occurring at different times. Because the two suits thus lacked a \"common nucleus of operative facts,\" claim preclusion did not and could not bar Lucky Brand from asserting its settlement agreement defense in the 2011 Action. III Resisting this conclusion, Marcel points to treatises and this Court’s cases, arguing that they support a version of \"defense preclusion\" doctrine that extends to the facts of this case. Brief for Respondent 24–26. But these authorities do no such thing. As an initial matter, regardless of what those authorities might imply about \"defense preclusion,\" none of them describe scenarios applicable here. Moreover, we doubt that these authorities stand for anything more than that traditional claim- or issue-preclusion principles may bar defenses raised in a subsequent suit— principles that, as explained above, do not bar Lucky Brand’s release defense here. Take, for example, cases that involve either judgment enforcement or a collateral attack on a prior judgment. Id., at 26–35. In the former scenario, a party takes action to enforce a prior judgment already issued against another; in the latter, a party seeks to avoid the effect of a prior judgment by bringing a suit to undo it. If, in either situation, a different outcome in the second action \"would nullify the initial judgment or would impair rights established in the initial action,\" preclusion principles would be at play. Restatement (Second) §22(b), at 185; Wright & Miller §4414. In both scenarios, courts simply apply claim preclusion or issue preclusion to prohibit a claim or defense that would attack a previously decided claim.3 But these principles do not preclude defendants from asserting defenses to new claims, which is precisely what Marcel would have us do here. In any event, judgment-enforcement and collateral-attack scenarios are far afield from the circumstances of this case. Lucky Brand’s defense in the 2011 Action did not threaten the judgment issued in the 2005 Action or, as Marcel argues, \"achieve the same practical result\" that the above-mentioned principles seek to avoid. Brief for Respondent 31–32. Indeed, while the judgment in the 2005 Action plainly prohibited Lucky Brand from using \"Get Lucky,\" it did not do the same with respect to Lucky Brand’s continued, standalone use of its own marks containing the word \"Lucky\"—the only conduct at issue in the 2011 Action. Put simply, Lucky Brand’s defense to new claims in the 2011 Action did not risk impairing the 2005 judgment. Nor do cases like Beloit v. Morgan, 7 Wall. 619 (1869), aid Marcel. See Brief for Respondent 32–33. To be sure, Beloit held that a defendant in a second suit over bonds \"of the same issue\" was precluded from raising a defense it had not raised in the first suit. 7 Wall., at 620. But the Court there explained that the judgment in the first suit \"established conclusively the original validity of the securities described in the bill, and the liability of the town to pay them.\" Id., at 623. In other words, by challenging the validity of all bonds of the same issue, the defense in the second suit would have threatened the validity of the judgment in the first suit. The same cannot be said of the defense raised in the 2011 Action vis-à-vis the judgment in the 2005 Action. At bottom, Marcel’s 2011 Action challenged different conduct—and raised different claims—from the 2005 Action. Under those circumstances, Marcel cannot preclude Lucky Brand from raising new defenses. The judgment of the Second Circuit is therefore reversed, and the case is remanded for proceedings consistent with this opinion."},
{"docket_number": "18-1059", "syllabus": "During former New Jersey Governor Chris Christie’s 2013 reelection campaign, his Deputy Chief of Staff, Bridget Anne Kelly, avidly courted Democratic mayors for their endorsements, but Fort Lee’s mayor refused to back the Governor’s campaign. Determined to punish the mayor, Kelly, Port Authority Deputy Executive Director William Baroni, and another Port Authority official, David Wildstein, decided to reduce from three to one the number of lanes long reserved at the George Washington Bridge’s toll plaza for Fort Lee’s morning commuters. To disguise their efforts at political retribution, Wildstein devised a cover story: The lane realignment was for a traffic study. As part of that cover story, the defendants asked Port Authority traffic engineers to collect some numbers about the effect of the changes. At the suggestion of a Port Authority manager, they also agreed to pay an extra toll collector overtime so that Fort Lee’s one remaining lane would not be shut down if the collector on duty needed a break. The lane realignment caused four days of gridlock in Fort Lee, and only ended when the Port Authority’s Executive Director learned of the scheme. Baroni and Kelly were convicted in federal court of wire fraud, fraud on a federally funded program or entity (the Port Authority), and conspiracy to commit each of those crimes. The Third Circuit affirmed. Held: Because the scheme here did not aim to obtain money or property, Baroni and Kelly could not have violated the federal-program fraud or wire fraud laws. The federal wire fraud statute makes it a crime to effect (with the use of the wires) \"any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.\" 18 U. S. C. §1343. Similarly, the federal-program fraud statute bars \"obtain[ing] by fraud\" the \"property\" (including money) of a federally funded program or entity. §666(a)(1)(A). These statutes are \"limited in scope to the protection of property rights,\" and do not authorize federal prosecutors to \"set[ ] standards of disclosure and good government for local and state officials.\" McNally v. United States, 483 U. S. 350, 360. So under either provision, the Government had to show not only that Baroni and Kelly engaged in deception, but that an object of their fraud was money or property. Cleveland v. United States, 531 U. S. 12, 26. The Government argues that the scheme had the object of obtaining the Port Authority’s money or property in two ways. First, the Government claims that Baroni and Kelly sought to commandeer part of the Bridge itself by taking control of its physical lanes. Second, the Government asserts that the defendants aimed to deprive the Port Authority of the costs of compensating the traffic engineers and back-up toll collectors. For different reasons, neither of these theories can sustain the verdicts. Baroni’s and Kelly’s realignment of the access lanes was an exercise of regulatory power—a reallocation of the lanes between different groups of drivers. This Court has already held that a scheme to alter such a regulatory choice is not one to take the government’s property. Id., at 23. And while a government’s right to its employees’ time and labor is a property interest, the prosecution must also show that it is an \"object of the fraud.\" Pasquantino v. United States, 544 U. S. 349, 355. Here, the time and labor of the Port Authority employees were just the implementation costs of the defendants’ scheme to reallocate the Bridge’s lanes—an incidental (even if foreseen) byproduct of their regulatory object. Neither defendant sought to obtain the services that the employees provided. Pp. 6–13. 909 F. 3d 550, reversed and remanded.", "opinion": "For four days in September 2013, traffic ground to a halt in Fort Lee, New Jersey. The cause was an unannounced realignment of 12 toll lanes leading to the George Washington Bridge, an entryway into Manhattan administered by the Port Authority of New York and New Jersey. For decades, three of those access lanes had been reserved during morning rush hour for commuters coming from the streets of Fort Lee. But on these four days—with predictable consequences—only a single lane was set aside. The public officials who ordered that change claimed they were reducing the number of dedicated lanes to conduct a traffic study. In fact, they did so for a political reason—to punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid. Exposure of their behavior led to the criminal convictions we review here. The Government charged the responsible officials under the federal statutes prohibiting wire fraud and fraud on a federally funded program or entity. See 18 U. S. C. §§1343, 666(a)(1)(A). Both those laws target fraudulent schemes for obtaining property. See §1343 (barring fraudulent schemes \"for obtaining money or property\"); §666(a)(1)(A) (making it a crime to \"obtain[] by fraud . . . property\"). The jury convicted the defendants, and the lower courts upheld the verdicts. The question presented is whether the defendants committed property fraud. The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct. Under settled precedent, the officials could violate those laws only if an object of their dishonesty was to obtain the Port Authority’s money or property. The Government contends it was, because the officials sought both to \"commandeer\" the Bridge’s access lanes and to divert the wage labor of the Port Authority employees used in that effort. Tr. of Oral Arg. 58. We disagree. The realignment of the toll lanes was an exercise of regulatory power—something this Court has already held fails to meet the statutes’ property requirement. And the employees’ labor was just the incidental cost of that regulation, rather than itself an object of the officials’ scheme. We therefore reverse the convictions. I The setting of this case is the George Washington Bridge. Running between Fort Lee and Manhattan, it is the busiest motor-vehicle bridge in the world. Twelve lanes with tollbooths feed onto the Bridge’s upper level from the Fort Lee side. Decades ago, the then-Governor of New Jersey committed to a set allocation of those lanes for the morning commute. And (save for the four days soon described) his plan has lasted to this day. Under the arrangement, nine of the lanes carry traffic coming from nearby highways. The three remaining lanes, designated by a long line of traffic cones laid down each morning, serve only cars coming from Fort Lee. The case’s cast of characters are public officials worked at or with the Port Authority and had political ties to New Jersey’s then-Governor Chris Christie. The Port Authority is a bi-state agency that manages bridges, tunnels, airports, and other transportation facilities in New York and New Jersey. At the time relevant here, William Baroni was its Deputy Executive Director, an appointee of Governor Christie and the highest ranking New Jersey official in the agency. Together with the Executive Director (a New York appointee), he oversaw \"all aspects of the Port Authority’s business,\" including operation of the George Washington Bridge. App. 21 (indictment). David Wildstein (who became the Government’s star witness) functioned as Baroni’s chief of staff. And Bridget Anne Kelly was a Deputy Chief of Staff to Governor Christie with special responsibility for managing his relations with local officials. She often worked hand-in-hand with Baroni and Wildstein to deploy the Port Authority’s resources in ways that would encourage mayors and other local figures to support the Governor. The fateful lane change arose out of one mayor’s resistance to such blandishments. In 2013, Governor Christie was up for reelection, and he wanted to notch a large, bipartisan victory as he ramped up for a presidential campaign. On his behalf, Kelly avidly courted Democratic mayors for their endorsements—among them, Mark Sokolich of Fort Lee. As a result, that town received some valuable benefits from the Port Authority, including an expensive shuttle-bus service. But that summer, Mayor Sokolich informed Kelly’s office that he would not back the Governor’s campaign. A frustrated Kelly reached out to Wildstein for ideas on how to respond. He suggested that getting rid of the dedicated Fort Lee lanes on the Bridge’s toll plaza would cause rush-hour traffic to back up onto local streets, leading to gridlock there. Kelly agreed to the idea in an admirably concise e-mail: \"Time for some traffic problems in Fort Lee.\" App. 917 (trial exhibit). In a later phone conversation, Kelly confirmed to Wildstein that she wanted to \"creat[e] a traffic jam that would punish\" Mayor Sokolich and \"send him a message.\" Id., at 254 (Wildstein testimony). And after Wildstein relayed those communications, Baroni gave the needed sign-off. To complete the scheme, Wildstein then devised \"a cover story\"—that the lane change was part of a traffic study, intended to assess whether to retain the dedicated Fort Lee lanes in the future. Id., at 264. Wildstein, Baroni, and Kelly all agreed to use that \"public policy\" justification when speaking with the media, local officials, and the Port Authority’s own employees. Id., at 265. And to give their story credibility, Wildstein in fact told the Port Authority’s engineers to collect \"some numbers on how[] far back the traffic was delayed.\" Id., at 305. That inquiry bore little resemblance to the Port Authority’s usual traffic studies. According to one engineer’s trial testimony, the Port Authority never closes lanes to study traffic patterns, because \"computer-generated model[ing]\" can itself predict the effect of such actions. Id., at 484 (testimony of Umang Patel); see id., at 473–474 (similar testimony of Victor Chung). And the information that the Port Authority’s engineers collected on this singular occasion was mostly \"not useful\" and \"discarded.\" Id., at 484–485 (Patel testimony). Nor did Wildstein or Baroni show any interest in the data. They never asked to review what the engineers had found; indeed, they learned of the results only weeks later, after a journalist filed a public-records request. So although the engineers spent valuable time assessing the lane change, their work was to no practical effect. Baroni, Wildstein, and Kelly also agreed to incur another cost—for extra toll collectors—in pursuit of their object. Wildstein’s initial thought was to eliminate all three dedicated lanes by not laying down any traffic cones, thus turning the whole toll plaza into a free-for-all. But the Port Authority’s chief engineer told him that without the cones \"there would be a substantial risk of sideswipe crashes\" involving cars coming into the area from different directions. Id., at 284 (Wildstein testimony). So Wildstein went back to Baroni and Kelly and got their approval to keep one lane reserved for Fort Lee traffic. That solution, though, raised another complication. Ordinarily, if a toll collector on a Fort Lee lane has to take a break, he closes his booth, and drivers use one of the other two lanes. Under the one-lane plan, of course, that would be impossible. So the Bridge manager told Wildstein that to make the scheme work, \"an extra toll collector\" would always have to be \"on call\" to relieve the regular collector when he went on break. Id., at 303. Once again, Wildstein took the news to Baroni and Kelly. Baroni thought it was \"funny,\" remarking that \"only at the Port Authority would [you] have to pay a toll collector to just sit there and wait.\" Ibid. Still, he and Kelly gave the okay. The plan was now ready, and on September 9 it went into effect. Without advance notice and on the (traffic-heavy) first day of school, Port Authority employees placed traffic cones two lanes further to the right than usual, restricting cars from Fort Lee to a single lane. Almost immediately, the town’s streets came to a standstill. According to the Fort Lee Chief of Police, the traffic rivaled that of 9/11, when the George Washington Bridge had shut down. School buses stood in place for hours. An ambulance struggled to reach the victim of a heart attack; police had trouble responding to a report of a missing child. Mayor Sokolich tried to reach Baroni, leaving a message that the call was about an \"urgent matter of public safety.\" Id., at 323. Yet Baroni failed to return that call or any other: He had agreed with Wildstein and Kelly that they should all maintain \"radio silence.\" Id., at 270. A text from the Mayor to Baroni about the locked-in school buses—also unanswered—went around the horn to Wildstein and Kelly. The last replied: \"Is it wrong that I am smiling?\" Id., at 990 (Kelly text message). The three merrily kept the lane realignment in place for another three days. It ended only when the Port Authority’s Executive Director found out what had happened and reversed what he called their \"abusive decision.\" Id., at 963 (e-mail of Patrick Foye). The fallout from the scheme was swift and severe. Baroni, Kelly, and Wildstein all lost their jobs. More to the point here, they all ran afoul of federal prosecutors. Wildstein pleaded guilty to conspiracy charges and agreed to cooperate with the Government. Baroni and Kelly went to trial on charges of wire fraud, fraud on a federally funded program or entity (the Port Authority), and conspiracy to commit each of those crimes. The jury found both of them guilty on all counts. The Court of Appeals for the Third Circuit affirmed, rejecting Baroni’s and Kelly’s claim that the evidence was insufficient to support their convictions. See United States v. Baroni, 909 F. 3d 550, 560–579 (2018). We granted certiorari. 588 U. S. ___ (2019). II The Government in this case needed to prove property fraud. The federal wire fraud statute makes it a crime to effect (with use of the wires) \"any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.\" 18 U. S. C. §1343. Construing that disjunctive language as a unitary whole, this Court has held that \"the money-orproperty requirement of the latter phrase\" also limits the former. McNally v. United States, 483 U. S. 350, 358 (1987). The wire fraud statute thus prohibits only deceptive \"schemes to deprive [the victim of] money or property.\" Id., at 356. Similarly, the federal-program fraud statute bars \"obtain[ing] by fraud\" the \"property\" (including money) of a federally funded program or entity like the Port Authority. §666(a)(1)(A). So under either provision, the Government had to show not only that Baroni and Kelly engaged in deception, but that an \"object of the[ir] fraud [was] ‘property.’\" Cleveland v. United States, 531 U. S. 12, 26 (2000).1 That requirement, this Court has made clear, prevents these statutes from criminalizing all acts of dishonesty by state and local officials. Some decades ago, courts of appeals often construed the federal fraud laws to \"proscribe[] schemes to defraud citizens of their intangible rights to honest and impartial government.\" McNally, 483 U. S., at 355. This Court declined to go along. The fraud statutes, we held in McNally, were \"limited in scope to the protection of property rights.\" Id., at 360. They did not authorize federal prosecutors to \"set[] standards of disclosure and good government for local and state officials.\" Ibid. Congress responded to that decision by enacting a law barring fraudulent schemes \"to deprive another of the intangible right of honest services\"—regardless of whether the scheme sought to divest the victim of any property. §1346. But the vagueness of that language led this Court to adopt \"a limiting construction,\" confining the statute to schemes involving bribes or kickbacks. Skilling v. United States, 561 U. S. 358, 405, 410 (2010). We specifically rejected a proposal to construe the statute as encompassing \"undisclosed selfdealing by a public official,\" even when he hid financial interests. Id., at 409. The upshot is that federal fraud law leaves much public corruption to the States (or their electorates) to rectify. Cf. N. J. Stat. Ann. §2C:30–2 (West 2016) (prohibiting the unauthorized exercise of official functions). Save for bribes or kickbacks (not at issue here), a state or local official’s fraudulent schemes violate that law only when, again, they are \"for obtaining money or property.\" 18 U. S. C. §1343; see §666(a)(1)(A) (similar). The Government acknowledges this much, but thinks Baroni’s and Kelly’s convictions remain valid. According to the Government’s theory of the case, Baroni and Kelly \"used a lie about a fictional traffic study\" to achieve their goal of reallocating the Bridge’s toll lanes. Brief for United States 43. The Government accepts that the lie itself—i.e., that the lane change was part of a traffic study, rather than political payback—could not get the prosecution all the way home. See id., at 43–44. As the Government recognizes, the deceit must also have had the \"object\" of obtaining the Port Authority’s money or property. Id., at 44. The scheme met that requirement, the Government argues, in two ways. First, the Government claims that Baroni and Kelly sought to \"commandeer[]\" part of the Bridge itself—to \"take control\" of its \"physical lanes.\" Tr. of Oral Arg. 58–59. Second, the Government asserts that the two defendants aimed to deprive the Port Authority of the costs of compensating the traffic engineers and back-up toll collectors who performed work relating to the lane realignment. On either theory, the Government insists, Baroni’s and Kelly’s scheme targeted \"a ‘species of valuable right [or] interest’ that constitutes ‘property’ under the fraud statutes.\" Brief for United States 22 (quoting Pasquantino v. United States, 544 U. S. 349, 356 (2005)). We cannot agree. As we explain below, the Government could not have proved—on either of its theories, though for different reasons—that Baroni’s and Kelly’s scheme was \"directed at the [Port Authority’s] property.\" Brief for United States 44. Baroni and Kelly indeed \"plotted to reduce [Fort Lee’s] lanes.\" Id., at 34. But that realignment was a quintessential exercise of regulatory power. And this Court has already held that a scheme to alter such a regulatory choice is not one to appropriate the government’s property. See Cleveland, 531 U. S., at 23. By contrast, a scheme to usurp a public employee’s paid time is one to take the government’s property. But Baroni’s and Kelly’s plan never had that as an object. The use of Port Authority employees was incidental to—the mere cost of implementing— the sought-after regulation of the Bridge’s toll lanes. Start with this Court’s decision in Cleveland, which reversed another set of federal fraud convictions based on the distinction between property and regulatory power. The defendant there had engaged in a deceptive scheme to influence, to his own benefit, Louisiana’s issuance of gaming licenses. The Government argued that his fraud aimed to deprive the State of property by altering its licensing decisions. This Court rejected the claim. The State’s \"intangible rights of allocation, exclusion, and control\"—its prerogatives over who should get a benefit and who should not— do \"not create a property interest.\" Ibid. Rather, the Court stated, those rights \"amount to no more and no less than\" the State’s \"sovereign power to regulate.\" Ibid.; see id., at 20 (\"[T]he State’s core concern\" in allocating gaming licenses \"is regulatory\"). Or said another way: The defendant’s fraud \"implicate[d] the Government’s role as sovereign\" wielding \"traditional police powers\"—not its role \"as property holder.\" Id., at 23–24. And so his conduct, however deceitful, was not property fraud. The same is true of the lane realignment. Through that action, Baroni and Kelly changed the traffic flow onto the George Washington Bridge’s tollbooth plaza. Contrary to the Government’s view, the two defendants did not \"commandeer\" the Bridge’s access lanes (supposing that word bears its normal meaning). They (of course) did not walk away with the lanes; nor did they take the lanes from the Government by converting them to a non-public use. Rather, Baroni and Kelly regulated use of the lanes, as officials responsible for roadways so often do—allocating lanes as between different groups of drivers. To borrow Cleveland’s words, Baroni and Kelly exercised the regulatory rights of \"allocation, exclusion, and control\"—deciding that drivers from Fort Lee should get two fewer lanes while drivers from nearby highways should get two more. They did so, according to all the Government’s evidence, for bad reasons; and they did so by resorting to lies. But still, what they did was alter a regulatory decision about the toll plaza’s use—in effect, about which drivers had a \"license\" to use which lanes. And under Cleveland, that run-of-themine exercise of regulatory power cannot count as the taking of property. A government’s right to its employees’ time and labor, by contrast, can undergird a property fraud prosecution. Suppose that a mayor uses deception to get \"on-the-clock city workers\" to renovate his daughter’s new home. United States v. Pabey, 664 F. 3d 1084, 1089 (CA7 2011). Or imagine that a city parks commissioner induces his employees into doing gardening work for political contributors. See United States v. Delano, 55 F. 3d 720, 723 (CA2 1995). As both defendants agree, the cost of those employees’ services would qualify as an economic loss to a city, sufficient to meet the federal fraud statutes’ property requirement. See Brief for Respondent Baroni 27; Tr. of Oral Arg. 16. No less than if the official took cash out of the city’s bank account would he have deprived the city of a \"valuable entitlement.\" Pasquantino, 544 U. S., at 357. But that property must play more than some bit part in a scheme: It must be an \"object of the fraud.\" Id., at 355; see Brief for United States 44; supra, at 6–7. Or put differently, a property fraud conviction cannot stand when the loss to the victim is only an incidental byproduct of the scheme.2 In the home-and-garden examples cited above, that constraint raised no problem: The entire point of the fraudsters’ plans was to obtain the employees’ services. But now consider the difficulty if the prosecution in Cleveland had raised a similar employee-labor argument. As the Government noted at oral argument here, the fraud on Louisiana’s licensing system doubtless imposed costs calculable in employee time: If nothing else, some state worker had to process each of the fraudster’s falsified applications. But still, the Government acknowledged, those costs were \"[i]ncidental.\" Tr. of Oral Arg. 63. The object of the scheme was never to get the employees’ labor: It was to get gaming licenses. So the labor costs could not sustain the conviction for property fraud. See id., at 62–63. This case is no different. The time and labor of Port Authority employees were just the implementation costs of the defendants’ scheme to reallocate the Bridge’s access lanes. Or said another way, the labor costs were an incidental (even if foreseen) byproduct of Baroni’s and Kelly’s regulatory object. Neither defendant sought to obtain the services that the employees provided. The back-up toll collectors— whom Baroni joked would just \"sit there and wait\"—did nothing he or Kelly thought useful. App. 303; see supra, at 5. Indeed, those workers came onto the scene only because the Port Authority’s chief engineer managed to restore one of Fort Lee’s lanes to reduce the risk of traffic accidents. See supra, at 5. In the defendants’ original plan, which scrapped all reserved lanes, there was no reason for extra toll collectors. And similarly, Baroni and Kelly did not hope to obtain the data that the traffic engineers spent their time collecting. By the Government’s own account, the traffic study the defendants used for a cover story was a \"sham,\" and they never asked to see its results. Brief for United States 4, 32; see supra, at 5. Maybe, as the Government contends, all of this work was \"needed\" to realize the final plan—\"to accomplish what [Baroni and Kelly] were trying to do with the [B]ridge.\" Tr. of Oral Arg. 60. Even if so, it would make no difference. Every regulatory decision (think again of Cleveland, see supra, at 11) requires the use of some employee labor. But that does not mean every scheme to alter a regulation has that labor as its object. Baroni’s and Kelly’s plan aimed to impede access from Fort Lee to the George Washington Bridge. The cost of the employee hours spent on implementing that plan was its incidental byproduct. To rule otherwise would undercut this Court’s oftrepeated instruction: Federal prosecutors may not use property fraud statutes to \"set[] standards of disclosure and good government for local and state officials.\" McNally, 483 U. S., at 360; see supra, at 7. Much of governance involves (as it did here) regulatory choice. If U. S. Attorneys could prosecute as property fraud every lie a state or local official tells in making such a decision, the result would be—as Cleveland recognized—\"a sweeping expansion of federal criminal jurisdiction.\" 531 U. S., at 24. And if those prosecutors could end-run Cleveland just by pointing to the regulation’s incidental costs, the same ballooning of federal power would follow. In effect, the Federal Government could use the criminal law to enforce (its view of ) integrity in broad swaths of state and local policymaking. The property fraud statutes do not countenance that outcome. They do not \"proscribe[] schemes to defraud citizens of their intangible rights to honest and impartial government.\" McNally, 483 U. S., at 355; see supra, at 7. They bar only schemes for obtaining property. III As Kelly’s own lawyer acknowledged, this case involves an \"abuse of power.\" Tr. of Oral Arg. 19. For no reason other than political payback, Baroni and Kelly used deception to reduce Fort Lee’s access lanes to the George Washington Bridge—and thereby jeopardized the safety of the town’s residents. But not every corrupt act by state or local officials is a federal crime. Because the scheme here did not aim to obtain money or property, Baroni and Kelly could not have violated the federal-program fraud or wire fraud laws. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."},
{"docket_number": "19-67", "syllabus": "Respondent Evelyn Sineneng-Smith operated an immigration consulting firm in San Jose, California. She assisted clients working without authorization in the United States to file applications for a labor certification program that once provided a path for aliens to adjust to lawful permanent resident status. Sineneng-Smith knew that her clients could not meet the long-passed statutory application-filing deadline, but she nonetheless charged each client over $6,000, netting more than $3.3 million. Sineneng-Smith was indicted for multiple violations of 8 U. S. C. §1324(a)(1)(A)(iv) and (B)(i). Those provisions make it a federal felony to \"encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,\" §1324(a)(1)(A)(iv), and impose an enhanced penalty if the crime is \"done for the purpose of commercial advantage or private financial gain,\" §1324(a)(1)(B)(i). In the District Court, she urged that the provisions did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied. The District Court rejected her arguments and she was convicted, as relevant here, on two counts under §1324(a)(1)(A)(iv) and (B)(i). Sineneng-Smith essentially repeated the same arguments on appeal to the Ninth Circuit. Again she asserted a right under the First Amendment to file administrative applications on her clients’ behalf, and she argued that the statute could not constitutionally be applied to her conduct. Instead of adjudicating the case presented by the parties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the First Amendment. In accord with the amici’s arguments, the Ninth Circuit held that §1324(a)(1)(A)(iv) is unconstitutionally overbroad. Held: The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion. The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. \"In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.\" Id., at 243. That principle forecloses the controlling role the Ninth Circuit took on in this case. No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith, represented by competent counsel, had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including abstract advocacy and legal advice. It did so even though Sineneng-Smith’s counsel had presented a contrary theory of the case in her briefs and before the District Court. A court is not hidebound by counsel’s precise arguments, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale. On remand, the case is to be reconsidered shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties. Pp. 3–9. 910 F. 3d 461, vacated and remanded.", "opinion": "This case concerns 8 U. S. C. §1324, which makes it a federal felony to \"encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.\" §1324(a)(1)(A)(iv). The crime carries an enhanced penalty if \"done for the purpose of commercial advantage or private financial gain.\" §1324(a)(1)(B)(i).1 Respondent Evelyn Sineneng-Smith operated an immigration consulting firm in San Jose, California. She was indicted for multiple violations of §1324(a)(1)(A)(iv) and (B)(i). Her clients, most of them from the Philippines, worked without authorization in the home health care industry in the United States. Between 2001 and 2008, Sineneng-Smith assisted her clients in applying for a \"labor certification\" that once allowed certain aliens to adjust their status to that of lawful permanent resident permitted to live and work in the United States. §1255(i)(1)(B)(ii). There was a hindrance to the efficacy of SinenengSmith’s advice and assistance. To qualify for the laborcertification dispensation she promoted to her clients, an alien had to be in the United States on December 21, 2000, and apply for certification before April 30, 2001. §1255(i)(1)(C). Sineneng-Smith knew her clients did not meet the application-filing deadline; hence, their applications could not put them on a path to lawful residence.2 Nevertheless, she charged each client $5,900 to file an application with the Department of Labor and another $900 to file with the U. S. Citizenship and Immigration Services. For her services in this regard, she collected more than $3.3 million from her unwitting clients. In the District Court, Sineneng-Smith urged unsuccessfully, inter alia, that the above-cited provisions, properly construed, did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied. See Motion to Dismiss in No. 10– cr–414 (ND Cal.), pp. 7–13, 20–25; Motion for Judgt. of Acquittal in No. 10–cr–414 (ND Cal.), pp. 14–19, 20–25. She was convicted on two counts under §1324(a)(1)(A)(iv) and (B)(i), and on other counts (filing false tax returns and mail fraud) she does not now contest. Throughout the District Court proceedings and on appeal, she was represented by competent counsel. On appeal from the §1324 convictions to the Ninth Circuit, both on brief and at oral argument, Sineneng-Smith essentially repeated the arguments she earlier presented to the District Court. See Brief for Appellant in No. 15–10614 (CA9), pp. 11–28. The case was then moved by the appeals panel onto a different track. Instead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the panel, including a question Sineneng-Smith herself never raised earlier: \"[W]hether the statute of conviction is overbroad . . . under the First Amendment.\" App. 122–124. In the ensuing do over of the appeal, counsel for the parties were assigned a secondary role. The Ninth Circuit ultimately concluded, in accord with the invited amici’s arguments, that §1324(a)(1)(A)(iv) is unconstitutionally overbroad. 910 F. 3d 461, 485 (2018). The Government petitioned for our review because the judgment of the Court of Appeals invalidated a federal statute. Pet. for Cert. 24. We granted the petition. 588 U. S. ___ (2019). As developed more completely hereinafter, we now hold that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion. We therefore vacate the Ninth Circuit’s judgment and remand the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel. I In our adversarial system of adjudication, we follow the principle of party presentation. As this Court stated in Greenlaw v. United States, 554 U. S. 237 (2008), \"in both civil and criminal cases, in the first instance and on appeal . . . , we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.\" Id., at 243. In criminal cases, departures from the party presentation principle have usually occurred \"to protect a pro se litigant’s rights.\" Id., at 244; see, e.g., Castro v. United States, 540 U. S. 375, 381–383 (2003) (affirming courts’ authority to recast pro se litigants’ motions to \"avoid an unnecessary dismissal\" or \"inappropriately stringent application of formal labeling requirements, or to create a better correspondence between the substance of a pro se motion’s claim and its underlying legal basis\" (citation omitted)). But as a general rule, our system \"is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.\" Id., at 386 (Scalia, J., concurring in part and concurring in judgment).3 In short: \"[C]ourts are essentially passive instruments of government.\" United States v. Samuels, 808 F. 2d 1298, 1301 (CA8 1987) (Arnold, J., concurring in denial of reh’g en banc)). They \"do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.\" Ibid. The party presentation principle is supple, not ironclad. There are no doubt circumstances in which a modest initiating role for a court is appropriate. See, e.g., Day v. McDonough, 547 U. S. 198, 202 (2006) (federal court had \"authority, on its own initiative,\" to correct a party’s \"evident miscalculation of the elapsed time under a statute [of limitations]\" absent \"intelligent waiver\").4 But this case scarcely fits that bill. To explain why that is so, we turn first to the proceedings in the District Court. In July 2010, a grand jury returned a multicount indictment against Sineneng-Smith, including three counts of violating §1324, three counts of mail fraud in violation of 18 U. S. C. §1341, and two counts of willfully subscribing to a false tax return in violation of 26 U. S. C. §7206(1). Sineneng-Smith pleaded guilty to the tax-fraud counts, App. to Pet. for Cert. 78a–79a, and did not pursue on appeal the two mail-fraud counts on which she was ultimately convicted. We therefore concentrate this description on her defenses against the §1324 charges. Before trial, Sineneng-Smith moved to dismiss the §1324 counts. Motion to Dismiss in No. 10–cr–414 (ND Cal.). She asserted first that the conduct with which she was charged—advising and assisting aliens about labor certifications—is not proscribed by §1324(a)(1)(A)(iv) and (B)(i). Being hired to file lawful applications on behalf of aliens already residing in the United States, she maintained, did not \"encourage\" or \"induce\" them to remain in this country. Id., at 7–13. Next, she urged, alternatively, that clause (iv) is unconstitutionally vague and therefore did not provide fair notice that her conduct was prohibited, id., at 13–18, or should rank as a content-based restraint on her speech, id., at 22–24. She further asserted that she has a right safeguarded to her by the Petition and Free Speech Clauses of the First Amendment to file applications on her clients’ behalf. Id., at 20–25. Nowhere did she so much as hint that the statute is infirm, not because her own conduct is protected, but because it trenches on the First Amendment sheltered expression of others. The District Court denied the motion to dismiss, holding that Sineneng-Smith could \"encourag[e]\" noncitizens to remain in the country, within the meaning of §1324(a)(1)(A)(iv), \"[b]y suggesting to [them] that the applications she would make on their behalf, in exchange for their payments, would allow them to eventually obtain legal permanent residency in the United States.\" App. to Pet. for Cert. 73a. The court also rejected Sineneng-Smith’s constitutional arguments, reasoning that she was prosecuted, not for filing clients’ applications, but for falsely representing to noncitizens that her efforts, for which she collected sizable fees, would enable them to gain lawful status. Id., at 75a. After a 12-day trial, the jury found Sineneng-Smith guilty on the three §1324 counts charged in the indictment, along with the three mail-fraud counts. App. 118–121. SinenengSmith then moved for a judgment of acquittal. She renewed, \"almost verbatim,\" the arguments made in her motion to dismiss, App. to Pet. for Cert. 65a, and the District Court rejected those arguments \"[f]or the same reasons as the court expressed in its order denying Sineneng-Smith’s motion to dismiss,\" ibid. She simultaneously urged that the evidence did not support the verdicts. Motion for Judgt. of Acquittal in No. 10–cr–414 (ND Cal.), at 1–14. The District Court found the evidence sufficient as to two of the three §1324 counts and two of the three mail-fraud counts. App. to Pet. for Cert. 67a.5 Sineneng-Smith’s appeal to the Ninth Circuit from the District Court’s §1324 convictions commenced unremarkably. On brief and at oral argument, she reasserted the selfregarding arguments twice rehearsed, initially in her motion to dismiss, and later in her motion for acquittal. Brief for Appellant in No. 15–10614 (CA9), at 9–27, 35–41; Recording of Oral Arg. (Apr. 18, 2017), at 37:00–39:40; see supra, at 5. With the appeal poised for decision based upon the parties’ presentations, the appeals panel intervened. It ordered further briefing, App. 122–124, but not from the parties. Instead, it named three organizations—\"the Federal Defender Organizations of the Ninth Circuit (as a group)[,] the Immigrant Defense Project[,] and the National Immigration Project of the National Lawyers Guild\"—and invited them to file amicus briefs on three issues: \"1. Whether the statute of conviction is overbroad or likely overbroad under the First Amendment, and if so, whether any permissible limiting construction would cure the First Amendment problem? \"2. Whether the statute of conviction is void for vagueness or likely void for vagueness, either under the First Amendment or the Fifth Amendment, and if so, whether any permissible limiting construction would cure the constitutional vagueness problem? \"3. Whether the statute of conviction contains an implicit mens rea element which the Court should enunciate. If so: (a) what should that mens rea element be; and (b) would such a mens rea element cure any serious constitutional problems the Court might determine existed?\" Ibid. Counsel for the parties were permitted, but \"not required,\" to file supplemental briefs \"limited to responding to any and all amicus/amici briefs.\" Id., at 123 (emphasis added). Invited amici and amici not specifically invited to file were free to \"brief such further issues as they, respectively, believe the law, and the record calls for.\" Ibid. The panel gave invited amici 20 minutes for argument, and allocated only 10 minutes to Sineneng-Smith’s counsel. Reargument Order in No. 15–10614 (CA9), Doc. No. 92. Of the three specified areas of inquiry, the panel reached only the first, holding that §1324(a)(1)(A)(iv) was facially overbroad under the First Amendment, 910 F. 3d, at 483–485, and was not susceptible to a permissible limiting construction, id., at 472, 479. True, in the redone appeal, Sineneng-Smith’s counsel adopted without elaboration counsel for amici’s overbreadth arguments. See Supplemental Brief for Appellant in No. 15–10614 (CA9), p. 1. How could she do otherwise? Understandably, she rode with an argument suggested by the panel. In the panel’s adjudication, her own arguments, differently directed, fell by the wayside, for they did not mesh with the panel’s overbreadth theory of the case. II No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother’s plea to her alien grandchild to remain in the United States. 910 F. 3d, at 483–484.6 Nevermind that Sineneng-Smith’s counsel had presented a contrary theory of the case in the District Court, and that this Court has repeatedly warned that \"invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’\" United States v. Williams, 553 U. S. 285, 293 (2008) (quoting Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 39 (1999)). As earlier observed, see supra, at 4, a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale. For the reasons stated, we vacate the Ninth Circuit’s judgment and remand the case for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties."},
{"docket_number": "18-1023", "syllabus": "The Patient Protection and Affordable Care Act established online exchanges where insurers could sell their healthcare plans. The nowexpired \"Risk Corridors\" program aimed to limit the plans’ profits and losses during the exchanges’ first three years (2014 through 2016). See §1342, 124 Stat. 211. Section 1342 set out a formula for computing a plan’s gains or losses at the end of each year, providing that eligible profitable plans \"shall pay\" the Secretary of the Department of Health and Human Services (HHS), while the Secretary \"shall pay\" eligible unprofitable plans. The Act neither appropriated funds for these yearly payments nor limited the amounts that the Government might pay. Nor was the program required to be budget neutral. Each year, the Government owed more money to unprofitable insurers than profitable insurers owed to the Government, resulting in a total deficit of more than $12 billion. And at the end of each year, the appropriations bills for the Centers for Medicare and Medicaid Services (CMS) included a rider preventing CMS from using the funds for Risk Corridors payments. Petitioners—four health-insurance companies that claim losses under the program—sued the Federal Government for damages in the Court of Federal Claims. Invoking the Tucker Act, they alleged that §1342 obligated the Government to pay the full amount of their losses as calculated by the statutory formula and sought a money judgment for the unpaid sums owed. Only one petitioner prevailed in the trial courts, and the Federal Circuit ruled for the Government in each appeal, holding that §1342 had initially created a Government obligation to pay the full amounts, but that the subsequent appropriations riders impliedly \"repealed or suspended\" that obligation. Held: 1. The Risk Corridors statute created a Government obligation to pay insurers the full amount set out in §1342’s formula. Pp. 9–16. (a) The Government may incur an obligation directly through statutory language, without also providing details about how the obligation must be satisfied. See United States v. Langston, 118 U. S. 389. Pp. 9–11. (b) Section 1342 imposed a legal duty of the United States that could mature into a legal liability through the insurers’ participation in the exchanges. This conclusion flows from the express terms and context of §1342, which imposed an obligation by using the mandatory term \"shall.\" The section’s mandatory nature is underscored by the adjacent provisions, which differentiate between when the HHS Secretary \"shall\" take certain actions and when she \"may\" exercise discretion. See §§1341(b)(2), 1343(b). Section 1342 neither requires the Risk Corridors program to be budget-neutral nor suggests that the Secretary’s payments to unprofitable plans pivoted on profitable plans’ payments to the Secretary or that a partial payment would satisfy the Government’s whole obligation. It thus must be given its plain meaning: The Government \"shall pay\" the sum prescribed by §1342. Pp. 11– 13. (c) Contrary to the Government’s contention, neither the Appropriations Clause nor the Anti-Deficiency Act addresses whether Congress itself can create or incur an obligation directly by statute. Nor does §1342’s obligation-creating language turn on whether Congress expressly provided budget authority before appropriating funds. The Government’s arguments also conflict with well-settled principles of statutory interpretation. That §1342 contains no language limiting the obligation to the availability of appropriations, while Congress expressly used such limiting language in other Affordable Care Act provisions, indicates that Congress intended a different meaning in §1342. Pp. 13–16. 2. Congress did not impliedly repeal the obligation through its appropriations riders. Pp. 16–23. (a) Because \"‘repeals by implication are not favored,’\" Morton v. Mancari, 417 U. S. 535, 549, this Court will regard each of two statutes effective unless Congress’ intention to repeal is \"‘clear and manifest,’\" or the laws are \"irreconcilable,\" id., at 550–551. In the appropriations context, this requires the Government to show \"something more than the mere omission to appropriate a sufficient sum.\" United States v. Vulte, 233 U. S. 509, 515. As Langston and Vulte confirm, the appropriations riders here did not manifestly repeal or discharge the Government’s uncapped obligation, see Langston, 118 U. S., at 394, and do not indicate \"any other purpose than the disbursement of a sum of money for the particular fiscal years,\" Vulte, 233 U. S., at 514. Nor is there any indication that HHS and CMS thought that the riders clearly expressed an intent to repeal. Pp. 16–19. (b) Appropriations measures have been found irreconcilable with statutory obligations to pay, but the riders here did not use the kind of \"shall not take effect\" language decisive in United States v. Will, 449 U. S. 200, 222–223, or purport to \"suspen[d]\" §1342 prospectively or to foreclose funds from \"any other Act\" \"notwithstanding\" §1342’s moneymandating text, United States v. Dickerson, 310 U. S. 554, 556–557. They also did not reference §1342’s payment formula, let alone \"irreconcilabl[y]\" change it, United States v. Mitchell, 109 U. S. 146, 150, or provide that payments from profitable plans would be \" ‘in full compensation’ \" of the Government’s obligation to unprofitable plans, United States v. Fisher, 109 U. S. 143, 150. Pp. 19–21. (c) The legislative history cited by the Federal Circuit is also unpersuasive. Pp. 22–23. 3. Petitioners properly relied on the Tucker Act to sue for damages in the Court of Federal Claims. Pp. 23–30. (a) The United States has waived its immunity for certain damages suits in the Court of Federal Claims through the Tucker Act. Because that Act does not create \"substantive rights,\" United States v. Navajo Nation, 556 U. S. 287, 290, a plaintiff must premise her damages action on \"other sources of law,\" like \"statutes or contracts,\" ibid., provided those statutes \" ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained,’ \" United States v. White Mountain Apache Tribe, 537 U. S. 465, 472. The Act does, however, yield when the obligation-creating statute provides its own detailed remedies or when the Administrative Procedure Act provides an avenue for relief. Pp. 23–26. (b) Petitioners clear each hurdle: The Risk Corridors statute is fairly interpreted as mandating compensation for damages, and neither exception to the Tucker Act applies. Section 1342’s mandatory \" ‘shall pay’ language\" falls comfortably within the class of statutes that permit recovery of money damages in the Court of Federal Claims. This finding is bolstered by §1342’s focus on compensating insurers for past conduct. And there is no separate remedial scheme supplanting the Court of Federal Claims’ power to adjudicate petitioners’ claims. See United States v. Bormes, 568 U. S. 6, 12. Nor does the Administrative Procedure Act bar petitioners’ Tucker Act suit. In contrast to Bowen v. Massachusetts, 487 U. S. 879, a Medicaid case where the State sued the HHS Secretary under the Administrative Procedure Act in district court, petitioners here seek not prospective, nonmonetary relief to clarify future obligations but specific sums already calculated, past due, and designed to compensate for completed labors. The Risk Corridors statute and Tucker Act allow them that remedy. And because the Risk Corridors program expired years ago, this litigation presents no special concern, as Bowen did, about managing a complex ongoing relationship or tracking ever-changing accounting sheets. Pp. 26–30. No. 18–1023 and No. 18–1028 (second judgment), 729 Fed. Appx. 939; No. 18–1028 (first judgment), 892 F. 3d 1311; No. 18–1038, 892 F. 3d 1184, reversed and remanded.", "opinion": "The Patient Protection and Affordable Care Act expanded healthcare coverage to many who did not have or could not afford it. The Affordable Care Act did this by, among other things, providing tax credits to help people buy insurance and establishing online marketplaces where insurers could sell plans. To encourage insurers to enter those marketplaces, the Act created several programs to defray the carriers’ costs and cabin their risks. Among these initiatives was the \"Risk Corridors\" program, a temporary framework meant to compensate insurers for unexpectedly unprofitable plans during the marketplaces’ first three years. The since-expired Risk Corridors statute, §1342, set a formula for calculating payments under the program: If an insurance plan loses a certain amount of money, the Federal Government \"shall pay\" the plan; if the plan makes a certain amount of money, the plan \"shall pay\" the Government. See §1342, 124 Stat. 211–212 (codified at 42 U. S. C. §18062). Some plans made money and paid the Government. Many suffered losses and sought reimbursement. The Government, however, did not pay. These cases are about whether petitioners—insurers who claim losses under the Risk Corridors program—have a right to payment under §1342 and a damages remedy for the unpaid amounts. We hold that they do. We conclude that §1342 of the Affordable Care Act established a moneymandating obligation, that Congress did not repeal this obligation, and that petitioners may sue the Government for damages in the Court of Federal Claims. I A In 2010, Congress passed the Patient Protection and Affordable Care Act, 124 Stat. 119, seeking to improve national health-insurance markets and extend coverage to millions of people without adequate (or any) health insurance. To that end, the Affordable Care Act called for the creation of virtual health-insurance markets, or \"Health Benefit Exchanges,\" in each State. 42 U. S. C. §18031(b)(1). 3 Individuals may buy health-insurance plans directly on an exchange and, depending on their household income, receive tax credits for doing so. 26 U. S. C. §36B; 42 U. S. C. §§18081, 18082. Once an insurer puts a plan on an exchange, it must \"accept every employer and individual in the State that applies for such coverage,\" 42 U. S. C. §300gg–1(a), and may not tether premiums to a particular applicant’s health, §300gg(a). In other words, the Act \"ensure[s] that anyone can buy insurance.\" King v. Burwell, 576 U. S. 473, 493 (2015). Insurance carriers had many reasons to participate in these new exchanges. Through the Affordable Care Act, they gained access to millions of new customers with tax credits worth \"billions of dollars in spending each year.\" Id., at 485. But the exchanges posed some business risks, too— including a lack of \"reliable data to estimate the cost of providing care for the expanded pool of individuals seeking coverage.\" 892 F. 3d 1311, 1314 (CA Fed. 2018) (case below in No. 18–1028). This uncertainty could have given carriers pause and affected the rates they set. So the Affordable Care Act created several risk-mitigation programs. At issue here is the Risk Corridors program.1 B The Risk Corridors program aimed to limit participating plans’ profits and losses for the exchanges’ first three years (2014, 2015, and 2016). See §1342, 124 Stat. 211, 42 U. S. C. §18062. It did so through a formula that computed a plan ’s gains or losses at the end of each year . Plans with profits above a certain threshold would pay the Government, while plans with losses below that threshold would receive payments from the Government. §1342(b), 124 Stat. 211. Specifically, §1342 stated that the eligible profitable plans \"shall pay\" the Secretary of the Department of Health and Human Services (HHS), while the Secretary \"shall pay\" the eligible unprofitable plans. Ibid.2 When it enacted the Affordable Care Act in 2010, Congress did not simultaneously appropriate funds for the yearly payments the Secretary could potentially owe under the Risk Corridors program. Neither did Congress limit the amounts that the Government might pay under §1342. Nor did the Congressional Budget Office (CBO) \"score\"—that is, calculate the budgetary impact of—the Risk Corridors program. In later years, the CBO noted that the Risk Corridors statute did not require the program to be budget neutral. The CBO reported that, \"[i]n contrast\" to the Act’s other risk-mitigation programs, \"risk corridor collections (which will be recorded as revenues) will not necessarily equal risk corridor payments, so that program can have net effects on the budget deficit.\" CBO, The Budget and Economic Outlook: 2014 to 2024, p. 59 (2014). The CBO thus recognized that \"[i]f insurers’ costs exceed their expectations, on average, the risk corridor program will impose costs on the federal budget.\" Id., at 110. Like the CBO, the federal agencies charged with implementing the program agreed that §1342 did not require 5 budget neutrality. Nine months before the program started, HHS acknowledged that the Risk Corridors program was \"not statutorily required to be budget neutral.\" 78 Fed. Reg. 15473 (2013). HHS assured, however, that \"[r]egardless of the balance of payments and receipts, HHS will remit payments as required under Section 1342 of the Affordable Care Act.\" Ibid. Similar guidance came from the Centers for Medicare and Medicaid Services (CMS), the agency tasked with helping the HHS Secretary collect and remit program payments. CMS confirmed that a lack of payments from profitable plans would not relieve the Government from making its payments to the unprofitable ones. See 79 Fed. Reg. 30260 (2014). Citing \"concerns that risk corridors collections may not be sufficient to fully fund risk corridors payments\" to the unprofitable plans, CMS declared that \"[i]n the unlikely event of a shortfall . . . HHS recognizes that the Affordable Care Act requires the Secretary to make full payments to issuers.\" Ibid. C The program’s first year, 2014, tallied a deficit of about $2.5 billion. Profitable plans owed the Government $362 million, while the Government owed unprofitable plans $2.87 billion. See CMS, Risk Corridors Payment Proration Rate for 2014 (2015). At the end of the first year, Congress enacted a bill appropriating a lump sum for CMS’ Program Management. See Pub. L. 113–235, Div. G, Tit. II, 128 Stat. 2130–2131 (providing for the fiscal year ending September 30, 2015). The bill included a rider restricting the appropriation’s effect on Risk Corridors payments out to issuers: \"None of the funds made available by this Act . . . or transferred from other accounts funded by this Act to the ‘Centers for Medicare and Medicaid Services— Program Management’ account, may be used for payments under section 1342(b)(1) of Public Law 111–148 (relating to risk corridors).\" §227, id., at 2491. The program’s second year resembled its first. In February 2015, HHS repeated its belief that \"risk corridors collections w[ould] be sufficient to pay for all\" of the Government’s \"risk corridors payments.\" 80 Fed. Reg. 10779 (2015). The agency again \"recognize[d] that the Affordable Care Act requires the Secretary to make full payments to issuers.\" Ibid. \"In the unlikely event that risk corridors collections\" were \"insufficient to make risk corridors payments,\" HHS reassured, the Government would \"use other sources of funding for the risk corridors payments, subject to the availability of appropriations.\" Ibid. The 2015 program year also ran a deficit, this time worth about $5.5 billion. See CMS, Risk Corridors Payment and Charge Amounts for the 2015 Benefit Year (2016). Facing a second shortfall, CMS continued to \"recogniz[e] that the Affordable Care Act requires the Secretary to make full payments to issuers.\" CMS, Risk Corridors Payments for 2015, p. 1 (2016). CMS also confirmed that \"HHS w[ould] record risk corridors payments due as an obligation of the United States Government for which full payment is required.\" Ibid. And at the close of the second year, Congress enacted another appropriations bill with the same rider as before. See Pub. L. 114–113, §225, 129 Stat. 2624 (providing for the fiscal year ending September 30, 2016). The program’s final year, 2016, was similar. The Government owed unprofitable insurers about $3.95 billion more than profitable insurers owed the Government. See CMS, Risk Corridors Payment and Charge Amounts for the 2016 Benefit Year (2017). And Congress passed an appropriations bill with the same rider. See Pub. L. 115–31, §223, 131 Stat. 543 (providing for the fiscal year ending September 30, 2017). 7 All told, the Risk Corridors program’s deficit exceeded $12 billion. D The dispute here is whether the Government must pay the remaining deficit. Petitioners in these consolidated cases are four health-insurance companies that participated in the healthcare exchanges: Maine Community Health Options, Blue Cross and Blue Shield of North Carolina, Land of Lincoln Mutual Health Insurance Company, and Moda Health Plan, Inc. They assert that their plans were unprofitable during the Risk Corridors program’s 3- year term and that, under §1342, the HHS Secretary still owes them hundreds of millions of dollars. These insurers sued the Federal Government for damages in the United States Court of Federal Claims, invoking the Tucker Act, 28 U. S. C. §1491. They alleged that §1342 of the Affordable Care Act obligated the Government to pay the full amount of their losses as calculated by the statutory formula and sought a money judgment for the unpaid sums owed—a claim that, if successful, could be satisfied through the Judgment Fund.3 These lawsuits saw mixed results in the trial courts. Petitioner Moda prevailed; the others did not.4 A divided panel of the United States Court of Appeals for the Federal Circuit ruled for the Government in each appeal. See 892 F. 3d 1311; 892 F. 3d 1184 (2018); 729 Fed. Appx. 939 (2018). As relevant here, the Federal Circuit concluded that §1342 had initially created a Government obligation to pay the full amounts that petitioners sought under the statutory formula. See 892 F. 3d, at 1320–1322. The court also recognized that \"it has long been the law that the government may incur a debt independent of an appropriation to satisfy that debt, at least in certain circumstances.\" Id., at 1321. Even so, the court held that Congress’ appropriations riders impliedly \"repealed or suspended\" the Government’s obligation. Id., at 1322. Although the panel acknowledged that \"[r]epeals by implication are generally disfavored\"— especially when the \"alleged repeal occurred in an appropriations bill\"—it found that the riders here \"adequately expressed Congress’s intent to suspend\" the Government’s payments to unprofitable plans \"beyond the sum of payments\" it collected from profitable plans. Id., at 1322–1323, 1325. Judge Newman dissented, observing that the Government had not identified any \"statement of abrogation or amendment of the statute,\" nor any \"disclaimer\" of the Government’s \"statutory and contractual commitments.\" Id., at 1335. The dissent also reasoned that precedent undermined the court’s conclusion and that the appropriations riders could not apply retroactively because the Government had used the Risk Corridors program to induce insurers to enter the exchanges. Id., at 1336–1339. Emphasizing the importance of Government credibility in public-private enterprise, the dissent warned that the majority’s decision would \"undermin[e] the reliability of dealings with the government.\" Id., at 1340. A majority of the Federal Circuit declined to revisit the court’s decision en banc, 908 F. 3d 738 (2018) (per curiam); see also id., at 740 (Newman, J., dissenting); id., at 741 (Wallach, J., dissenting), and we granted certiorari, 588 U. S. ___ (2019). These cases present three questions: First, did §1342 of the Affordable Care Act obligate the Government to pay participating insurers the full amount calculated by that statute? Second, did the obligation survive Congress’ appropriations riders? And third, may petitioners sue the Government under the Tucker Act to recover on that obligation? Because our answer to each is yes, we reverse. II The Risk Corridors statute created a Government obligation to pay insurers the full amount set out in §1342’s formula. A An \"obligation\" is a \"definite commitment that creates a legal liability of the government for the payment of goods and services ordered or received, or a legal duty . . . that could mature into a legal liability by virtue of actions on the part of the other party beyond the control of the United States.\" GAO, A Glossary of Terms Used in the Federal Budget Process 70 (GAO–05–734SP, 2005). The Government may incur an obligation by contract or by statute. See ibid. Incurring an obligation, of course, is different from paying one. After all, the Constitution’s Appropriations Clause provides that \"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.\" Art. I, §9, cl. 7; see also GAO, Principles of Federal Appropriations Law 2–3 (4th ed. 2016) (hereinafter GAO Redbook) (\"[T]he authority to incur obligations by itself is not sufficient to authorize payments from the Treasury\"). Creating and satisfying a Government obligation, therefore, typically involves four steps: (1) Congress passes an organic statute (like the Affordable Care Act) that creates a program, agency, or function; (2) Congress passes an Act authorizing appropriations; (3) Congress enacts the appropriation, granting \"budget authority\" to incur obligations and make payments, and designating the funds to be drawn; and (4) the relevant Government entity begins incurring the obligation. See id., at 2–56; see also Op. Comp. Gen., B–193573 (Dec. 19, 1979). But Congress can deviate from this pattern. It may, for instance, authorize agencies to enter into contracts and \"incur obligations in advance of appropriations.\" GAO Redbook 2–4. In that context, the contracts \"constitute obligations binding on the United States,\" such that a \"failure or refusal by Congress to make the necessary appropriation would not defeat the obligation, and the party entitled to payment would most likely be able to recover in a lawsuit.\" Id., at 2–5; see also, e.g., Cherokee Nation of Okla. v. Leavitt, 543 U. S. 631, 636–638 (2005) (rejecting the Government’s argument that it is legally bound by its contractual promise to pay \"if, and only if, Congress appropriated sufficient funds\"); Salazar v. Ramah Navajo Chapter, 567 U. S. 182, 191 (2012) (\"Although the agency itself cannot disburse funds beyond those appropriated to it, the Government’s ‘valid obligations will remain enforceable in the courts’\" (quoting 2 GAO Redbook 6–17 (2d ed. 1992)). Congress can also create an obligation directly by statute, without also providing details about how it must be satisfied. Consider, for example, United States v. Langston, 118 U. S. 389 (1886). In that case, Congress had enacted a statute fixing an official’s annual salary at \"$7,500 from the date of the creation of his office.\" Id., at 394. Years later, however, Congress failed to appropriate enough funds to pay the full amount, prompting the officer to sue for the remainder. Id., at 393. Understanding that Congress had created the obligation by statute, this Court held that a subsequent failure to appropriate enough funds neither \"abrogated [n]or suspended\" the Government’s pre-existing commitment to pay. Id., at 394. The Court thus affirmed judgment for the officer for the balance owed. Ibid.5 The GAO shares this view. As the Redbook explains, if Congress created an obligation by statute without detailing how it will be paid, \"an agency could presumably meet a funding shortfall by such measures as making prorated payments.\" GAO Redbook 2–36, n. 39. But \"such actions would be only temporary pending receipt of sufficient funds to honor the underlying obligation\" and \"[t]he recipient would remain legally entitled to the balance.\" Ibid. Thus, the GAO warns, although a \"failure to appropriate\" funds \"will prevent administrative agencies from making payment,\" that failure \"is unlikely to prevent recovery by way of a lawsuit.\" Id., at 2–63 (citing, e.g., Langston, 118 U. S., at 394). Put succinctly, Congress can create an obligation directly through statutory language. B Section 1342 imposed a legal duty of the United States that could mature into a legal liability through the insurers’ actions—namely, their participating in the healthcare exchanges. This conclusion flows from §1342’s express terms and context. See, e.g., Merit Management Group, LP v. FTI Consulting, Inc., 583 U. S. ___, ___ (2018) (slip op., at 11) (statutory interpretation \"begins with the text\"). The first sign that the statute imposed an obligation is its mandatory language: \"shall.\" \"Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.\" Kingdomware Technologies, Inc. v. United States, 579 U. S. ___, ___ (2016) (slip op., at 9); see also Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) (observing that \"‘shall’\" typically \"creates an obligation impervious to . . . discretion\"). Section 1342 uses the command three times: The HHS Secretary \"shall establish and administer\" the Risk Corridors program from 2014 to 2016, \"shall provide\" for payments according to a precise statutory formula, and \"shall pay\" insurers for losses exceeding the statutory threshold. §§1342(a), (b)(1), 114 Stat. 211, 42 U. S. C. §§18062(a), (b)(1). Section 1342’s adjacent provisions also underscore its mandatory nature. In §1341 (a reinsurance program) and §1343 (a risk-adjustment program), the Affordable Care Act differentiates between when the HHS Secretary \"shall\" take certain actions and when she \"may\" exercise discretion. See §1341(b)(2), 124 Stat. 209, 42 U. S. C. §18061(b)(2) (\"[T]he Secretary . . . shall include\" a formula that \"may be designed\" in multiple ways); §1343(b), 124 Stat. 212, 42 U. S. C. §18063(b) (\"The Secretary . . . shall establish\" and \"may utilize\" certain criteria). Yet Congress chose mandatory terms for §1342. \"When,\" as is the case here, Congress \"distinguishes between ‘may’ and ‘shall,’ it is generally clear that ‘shall’ imposes a mandatory duty.\" Kingdomware, 579 U. S., at ___ (slip op., at 9). Nothing in §1342 requires the Risk Corridors program to be budget neutral, either. Nor does the text suggest that the Secretary’s payments to unprofitable plans pivoted on profitable plans’ payments to the Secretary, or that a par- tial payment would satisfy the Government’s whole obligation. Thus, without \"any indication\" that §1342 allows the Government to lessen its obligation, we must \"give effect to [Section 1342’s] plain command.\" Lexecon, 523 U. S., at 35. That is, the statute meant what it said: The Government \"shall pay\" the sum that §1342 prescribes.6 C The Government does not contest that §1342’s plain terms appeared to create an obligation to pay whatever amount the statutory formula provides. It insists instead that the Appropriations Clause, Art. I, §9, cl. 7, and the Anti-Deficiency Act, 31 U. S. C. §1341, \"qualified\" that obligation by making \"HHS’s payments contingent on appropriations by Congress.\" Brief for United States 20. \"Because Congress did not appropriate funds beyond the amounts collected\" from profitable plans, this argument goes, \"HHS’s statutory duty [to pay unprofitable plans] extended only to disbursing those collected amounts.\" Id., at 24–25. That does not follow. Neither the Appropriations Clause nor the Anti-Deficiency Act addresses whether Congress itself can create or incur an obligation directly by statute. Rather, both provisions constrain how federal employees and officers may make or authorize payments without appropriations. See U. S. Const., Art. I, §9, cl. 7 (requiring an \"Appropriatio[n] made by Law\" before money may \"be drawn\" to satisfy a payment obligation); 31 U. S. C. §1341(a)(1)(A) (\"[A]n officer or employee of the United States Government . . . may not . . . make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation\"). As we have explained, \"‘[a]n appropriation per se merely imposes limitations upon the Government’s own agents,’\" but \"‘its insufficiency does not pay the Government’s debts, nor cancel its obligations.’\" Ramah, 567 U. S., at 197 (quoting Ferris v. United States, 27 Ct. Cl. 542, 546 (1892)). If anything, the Anti-Deficiency Act confirms that Congress can create obligations without contemporaneous funding sources: That Act’s prohibitions give way \"as specified\" or \"authorized\" by \"any other provision of law.\" 31 U. S. C. §1341(a)(1). Here, the Government’s obligation was authorized by the Risk Corridors statute. And contrary to the Government’s view, §1342’s obligation-creating language does not turn on whether Congress expressly provided \"budget authority\" before appropriating funds. Budget authority is an agency’s power \"provided by Federal law to incur financial obligations,\" 88 Stat. 297, 2 U. S. C. §622(2)(A), \"that will result in immediate or future outlays of government funds,\" GAO Redbook 2–1; see also id., at 2–55 (\"Agencies may incur obligations only after Congress grants budget authority\"); GAO, A Glossary of Terms Used in the Federal Budget Process, at 20–21. As explained above, Congress usually gives budget authority through an appropriations Act or by expressly granting an agency authority to contract for the Government. See GAO Redbook 2–1 to 2–5. But budget authority is not necessary for Congress itself to create an obligation by statute. See Langston, 118 U. S., at 394; cf. Raines v. Byrd, 521 U. S. 811, 815 (1997) (treating legal obligations of the Government as distinct from budget authority). The Government’s arguments also conflict with wellsettled principles of statutory interpretation. At bottom, the Government contends that the existence and extent of 15 its obligation here is \"subject to the availability of appropriations.\" Brief for United States 41. But that language appears nowhere in §1342, even though Congress could have expressly limited an obligation to available appropriations or specific dollar amounts. Indeed, Congress did so explicitly in other provisions of the Affordable Care Act. This Court generally presumes that \"‘when Congress includes particular language in one section of a statute but omits it in another,’\" Congress \"‘intended a difference in meaning.’\" Digital Realty Trust, Inc. v. Somers, 583 U. S. ___, ___ (2018) (slip op., at 10) (quoting Loughrin v. United States, 573 U. S. 351, 358 (2014) (alterations omitted)). The Court likewise hesitates \"‘to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.’\" Republic of Sudan v. Harrison, 587 U. S. ___, ___ (2019) (slip op., at 10) (quoting Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837 (1988)). The \"subject to appropriations\" and payment-capping language in other sections of the Affordable Care Act would be meaningless had §1342 simultaneously achieved the same end with silence. In sum, the plain terms of the Risk Corridors provision created an obligation neither contingent on nor limited by the availability of appropriations or other funds. III The next question is whether Congress impliedly repealed the obligation through its appropriations riders. It did not. A Because Congress did not expressly repeal §1342, the Government seeks to show that Congress impliedly did so. But \"repeals by implication are not favored,\" Morton v. Mancari, 417 U. S. 535, 549 (1974) (internal quotation marks omitted), and are a \"rarity,\" J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U. S. 124, 142 (2001) (in- ternal quotation marks omitted). Presented with two statutes, the Court will \"regard each as effective\"—unless Congress’ intention to repeal is \"‘\"clear and manifest,\"’\" or the two laws are \"irreconcilable.\" Morton, 417 U. S., at 550– 551 (quoting United States v. Borden Co., 308 U. S. 188, 198 (1939)); see also FCC v. NextWave Personal Communications Inc., 537 U. S. 293, 304 (2003) (\"[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective\" (internal quotation marks omitted)). This Court’s aversion to implied repeals is \"especially\" strong \"in the appropriations context.\" Robertson v. Seattle Audubon Soc., 503 U. S. 429, 440 (1992); see also New York Airways, Inc. v. United States, 177 Ct. Cl. 800, 810, 369 F. 2d 743, 748 (1966). The Government must point to \"something more than the mere omission to appropriate a sufficient sum.\" United States v. Vulte, 233 U. S. 509, 515 (1914); accord, GAO Redbook 2–63 (\"The mere failure to appropriate sufficient funds is not enough\"). The question, then, is whether the appropriations riders manifestly repealed or discharged the Government’s uncapped obligation. Langston confirms that the appropriations riders did neither. Recall that in Langston, Congress had established a statutory obligation to pay a salary of $7,500, yet later appropriated a lesser amount. 118 U. S., at 393–394. This Court held that Congress did not \"abrogat[e] or suspen[d]\" the salary-fixing statute by \"subsequent enactments [that] merely appropriated a less amount\" than necessary to pay, because the appropriations bill lacked \"words that expressly or by clear implication modified or repealed the previous law.\" Id., at 394. Vulte reaffirmed that a mere failure to appropriate does not repeal or discharge an obligation to pay. At issue there was whether certain appropriations Acts had repealed a Government obligation to pay bonuses to military servicemen. 233 U. S., at 511–512. A 1902 statute had provided a 10 percent bonus to officers serving outside the contiguous United States, but in 1906 and 1907, Congress enacted appropriations funding the bonuses for officers \"except [those in] P[ue]rto Rico and Hawaii.\" Id., at 512. Then, in 1908, Congress enacted a statute stating \"‘[t]hat the increase of pay . . . shall be as now provided by law.’\" Id., at 513. When Lieutenant Nelson Vulte sought a bonus for his service in Puerto Rico from 1908 to 1909, the Government refused, contending that the appropriations Acts had impliedly repealed its obligation altogether. Relying on Langston, Vulte rejected that argument. \"[I]t is to be remembered,\" the Court wrote, that the alleged repeals \"were in appropriation acts and no words were used to indicate any other purpose than the disbursement of a sum of money for the particular fiscal years.\" 233 U. S., at 514. At most, the appropriations had \"temporarily suspend[ed]\" payments, but they did not use \"‘the most clear and positive terms’\" required to \"modif[y] or repea[l]\" the Government’s obligation itself. Id., at 514–515 (quoting Minis v. United States, 15 Pet. 423, 445 (1841)). Because the Government had failed to show that repeal was the only ‘\"reasonable interpretation’\" of the appropriation Acts, the obligation persisted. 233 U. S., at 515 (quoting Minis, 15 Pet., at 445). The parallels among Langston, Vulte, and these cases are clear. Here, like in Langston and Vulte, Congress \"merely appropriated a less amount\" than that required to satisfy the Government’s obligation, without \"expressly or by clear implication modif[ying]\" it. Langston, 118 U. S., at 394; see also Vulte, 233 U. S., at 515. The riders stated that \"[n]one of the funds made available by this Act,\" as opposed to any other sources of funds, \"may be used for payments under\" the Risk Corridors statute. §227, 128 Stat. 2491; accord, §225, 129 Stat. 2624; §223, 131 Stat. 543. But \"no words were used to indicate any other purpose than the disbursement of a sum of money for the particular fiscal years.\" Vulte, 233 U. S., at 514. And especially because the Government had already begun incurring the prior year’s obligation each time Congress enacted a rider, reasonable (and nonrepealing) interpretations exist. Indeed, finding a repeal in these circumstances would raise serious questions whether the appropriations riders retroactively impaired insurers’ rights to payment. See Landgraf v. USI Film Products, 511 U. S. 244, 265–266, 280 (1994); see also GAO Redbook 1–61 to 1–62. The relevant agencies’ responses to the riders also undermine the case for an implied repeal here. Had Congress \"clearly expressed\" its intent to repeal, one might have expected HHS or CMS to signal the sea change. Morton, 417 U. S., at 551. But even after Congress enacted the first rider, the agencies reiterated that \"the Affordable Care Act requires the Secretary to make full payments to issuers,\" 80 Fed. Reg. 10779, and that \"HHS w[ould] record risk corridors payments due as an obligation of the United States Government for which full payment is required,\" CMS, Risk Corridors Payments for 2015, at 1. They understood that profitable insurers’ payments to the Government would not dispel the Secretary’s obligation to pay unprofitable insurers, even \"in the event of a shortfall.\" Ibid. Given the Court’s potent presumption in the appropriations context, an implied-repeal-by-rider must be made of sterner stuff. B To be sure, this Court’s implied-repeal precedents reveal two situations where the Court has deemed appropriations measures irreconcilable with statutory obligations to pay. But neither one applies here. The first line of cases involved appropriations bills that, without expressly invoking words of \"repeal,\" reached that outcome by completely revoking or suspending the underlying obligation before the Government began incurring it. See United States v. Will, 449 U. S. 200 (1980); United States v. Dickerson, 310 U. S. 554 (1940). Will concluded that Congress had canceled an obligation to pay cost-ofliving raises through appropriations bills that bluntly stated that future raises \"‘shall not take effect’\" or that restricted funds from \"‘this Act or any other Act.’\" 449 U. S., at 206–207, 223.8 Likewise, Dickerson held that a series of appropriations bills repealed an obligation to pay militaryreenlistment bonuses due in particular fiscal years. See 310 U. S., at 561. One enactment \"‘hereby suspended’\" the bonuses before they took effect, and another \"continued\" this suspension for additional years, providing that \"‘no part of any appropriation in this or any other Act for the [next] fiscal year . . . shall be available for the payment [of the bonuses] notwithstanding’\" the statute creating the Government’s obligation to pay. Id., at 555–557. Here, by contrast, the appropriations riders did not use the kind of \"shall not take effect\" language decisive in Will. See 449 U. S., at 222–223. Nor did the riders purport to \"suspen[d]\" §1342 prospectively or to foreclose funds from \"any other Act\" \"notwithstanding\" §1342’s moneymandating text. Dickerson, 310 U. S., at 556–557; see also Will, 449 U. S., at 206–207. Neither Will nor Dickerson supports the Federal Circuit’s implied-repeal holding. The second strand of precedent turned on provisions that reformed statutory payment formulas in ways \"irreconcilable\" with the original methods. See United States v. Mitchell, 109 U. S. 146, 150 (1883); see also United States v. Fisher, 109 U. S. 143, 145–146 (1883). In Mitchell, an ap - propriations bill decreased the salaries for federal interpreters (from $400 to $300) and changed how the agency would distribute any \"‘additional pay’\" (from \"‘all emoluments and allowances whatsoever’\" to payments at the agency head’s discretion). 109 U. S., at 147, 149. And in Fisher, Congress altered an obligation to pay judges $3,000 per year by providing that a lesser appropriation would be \"‘in full compensation’\" for services rendered in the next fiscal year. 109 U. S., at 144.9 The appropriations bills here created no such conflict as in Mitchell and Fisher. The riders did not reference §1342’s payment formula at all, let alone \"irreconcilabl[y]\" change it. Mitchell, 109 U. S., at 150. Nor did they provide that Risk Corridors payments from profitable plans would be \"‘in full compensation’\" of the Government’s obligation to unprofitable plans. Fisher, 109 U. S., at 146. Instead, the riders here must be taken at face value: as a \"mere omission to appropriate a sufficient sum.\" Vulte, 233 U. S., at 515. Congress could have used the kind of language we have held to effect a repeal or suspension—indeed, it did so in other provisions of the relevant appropriations bills. See, e.g., §716, 128 Stat. 2163 (\"None of the funds appropriated or otherwise made available by this or any other Act shall be used . . . \"); §714, 129 Stat. 2275 (same); §714, 131 Stat. 168 (same). But for the Risk Corridors program, it did not. C We also find unpersuasive the only pieces of legislative history that the Federal Circuit cited. According to the Court of Appeals, a floor statement and an unpublished GAO letter provided \"clear intent\" to cancel or \"suspend\" the Government’s Risk Corridors obligation. See 892 F. 3d, at 1318–1319, 1325–1326. We doubt that either source could ever evince the kind of clear congressional intent required to repeal a statutory obligation through an appropriations rider. See United States v. Kwai Fun Wong, 575 U. S. 402, 412 (2015). But even if they could, they did not do so here. The floor statement (which Congress adopted as an \"explanatory statement\") does not cross the clear-expression threshold. See 160 Cong. Rec. 17805, 18307 (2014); see also §4, 128 Stat. 2132. That statement interpreted an HHS regulation as saying that \"the risk corridor program will be budget neutral, meaning the federal government will never pay out more than it collects.\" 160 Cong. Rec., at 18307.10 But that misunderstands the referenced regulation, which provided only that HHS \"project[ed]\" that the program would be budget neutral and that the agency \"intend[ed]\" to treat it that way, while making clear that \"it [was] difficult to estimate\" the \"aggregate risk corridors payments and charges at [the] time.\" 79 Fed. Reg. 13829. HHS’ goals did not alter its prior interpretation that the Risk Corridors program was \"not statutorily required to be budget neutral.\" 78 Fed. Reg. 15473. And neither the floor statement nor the appropriations rider said anything requiring budget neutrality or redefining §1342’s formula.11 The GAO letter is even more inapt. In it, the GAO responded to two legislators’ inquiry by identifying two sources of available funding for the first year of Risk Corridors payments: CMS’ appropriations for the 2014 fiscal year and profitable insurance plans’ payments to the Secretary. 892 F. 3d, at 1318; see also App. in No. 17–1994 (CA Fed.), pp. 234–240. Because the rider cut off the first source of funds, the Federal Circuit inferred congressional intent \"to temporarily cap\" the Government’s payments \"at the amount of payments\" profitable plans made \"for each of the applicable years\" of the Risk Corridors program. 892 F. 3d, at 1325. That was error. The letter has little value because it appears nowhere in the legislative record. Perhaps for that reason, the Government does not rely on it. IV Having found that the Risk Corridors statute established a valid yet unfulfilled Government obligation, this Court must turn to a final question: Where does petitioners’ lawsuit belong, and for what relief? We hold that petitioners properly relied on the Tucker Act to sue for damages in the Court of Federal Claims. A The United States is immune from suit unless it unequivocally consents. United States v. Navajo Nation, 556 U. S. 287, 289 (2009). The Government has waived immunity for certain damages suits in the Court of Federal Claims through the Tucker Act, 24 Stat. 505. See United States v. Mitchell, 463 U. S. 206, 212 (1983). That statute permits \"claim[s] against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.\" 28 U. S. C. §1491(a)(1). The Tucker Act, however, does not create \"substantive rights.\" Navajo Nation, 556 U. S., at 290. A plaintiff relying on the Tucker Act must premise her damages action on \"other sources of law,\" like \"statutes or contracts.\" Ibid. For that reason, \"[n]ot every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act.\" Mitchell, 463 U. S., at 216. Nor will every \"failure to perform an obligation . . . creat[e] a right to monetary relief\" against the Government. United States v. Bormes, 568 U. S. 6, 16 (2012). To determine whether a statutory claim falls within the Tucker Act’s immunity waiver, we typically employ a \"fair interpretation\" test. A statute creates a \"right capable of grounding a claim within the waiver of sovereign immunity if, but only if, it ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’\" United States v. White Mountain Apache Tribe, 537 U. S. 465, 472 (2003) (quoting Mitchell, 463 U. S., at 217)); see also Navajo Nation, 556 U. S., at 290 (\"The other source of law need not explicitly provide that the right or duty it creates is enforceable through a suit for damages\"). Satisfying this rubric is generally both necessary and sufficient to permit a Tucker Act suit for damages in the Court of Federal Claims. White Mountain Apache, 537 U. S., at 472–473.12 But there are two exceptions. The Tucker Act yields when the obligation-creating statute provides its own detailed remedies, or when the Administrative Procedure Act, 60 Stat. 237, provides an avenue for relief. See Bormes, 568 U. S., at 13, 16; Bowen v. Massachusetts, 487 U. S. 879, 900–908 (1988). B Petitioners clear each hurdle: The Risk Corridors statute is fairly interpreted as mandating compensation for damages, and neither exception to the Tucker Act applies. 1 Rarely has the Court determined whether a statute can \"fairly be interpreted as mandating compensation by the Federal Government.\" Mitchell, 463 U. S., at 216–217 (internal quotation marks omitted). Likely this is because socalled money-mandating provisions are uncommon, see M. Solomson, Court of Federal Claims: Jurisdiction, Practice, and Procedure 4–18 (2016), and because Congress has at its disposal several blueprints for conditioning and limiting obligations, see n. 7, supra; see also GAO Redbook 2–22 to 2– 24, 2–54 to 2–58. But Congress used none of those tools in §1342. The Risk Corridors statute is one of the rare laws permitting a damages suit in the Court of Federal Claims. Here again §1342’s mandatory text is significant. Statutory \"‘shall pay’ language\" often reflects congressional intent \"to create both a right and a remedy\" under the Tucker Act. Bowen, 487 U. S., at 906, n. 42; see also, e.g., id., at 923 (Scalia, J., dissenting) (\"[A] statute commanding the payment of a specified amount of money by the United States impliedly authorizes (absent other indication) a claim for damages in the defaulted amount\"); United States v. Testan, 424 U. S. 392, 404 (1976) (suggesting that the Back Pay Act, 5 U. S. C. §5596, may permit damages suits under the Tucker Act \"in carefully limited circumstances\"); Mitchell, 463 U. S., at 217 (similar). Section 1342’s triple mandate—that the HHS Secretary \"shall establish and administer\" the program, \"shall provide\" for payment according to the statutory formula, and \"shall pay\" qualifying insurers—falls comfortably within the class of moneymandating statutes that permit recovery of money damages in the Court of Federal Claims. Bolstering our finding is §1342’s focus on compensating insurers for past conduct. In assessing Tucker Act actions, this Court has distinguished statutes that \"attempt to compensate a particular class of persons for past injuries or labors\" from laws that \"subsidize future state expenditures.\" Bowen, 487 U. S., at 906, n. 42. (The first group permits Tucker Act suits; the second does not.) The Risk Corridors statute sits securely in the first category: It uses a backwards-looking formula to compensate insurers for losses incurred in providing healthcare coverage for the prior year.13 2 Nor is there a separate remedial scheme supplanting the Court of Federal Claims’ power to adjudicate petitioners’ claims. True, the Tucker Act \"is displaced\" when \"a law assertedly imposing monetary liability on the United States contains its own judicial remedies .\" Bormes , 568 U. S., at 12. A plaintiff in that instance cannot rely on our \"fair interpretation\" test, and instead must stick to the moneymandating statute’s \"own text\" to \"determine whether the damages liability Congress crafted extends to the Federal Government.\" Id., at 15–16. Examples include the Fair Credit Reporting Act, 84 Stat. 1127, and the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246. The former superseded the Tucker Act by creating a cause of action, imposing a statute of limitations, and providing subjectmatter jurisdiction in federal district courts. See 15 U. S. C. §§1681n, 1681o, 1681p; Bormes, 568 U. S., at 15. And the latter did so by allowing aggrieved parties to petition the Secretary of Agriculture and by paving a path for judicial review. See 7 U. S. C. §608c(15); Horne v. Department of Agriculture, 569 U. S. 513, 527 (2013). Unlike those statutes, however, the Affordable Care Act did not establish a comparable remedial scheme. Nor has the Government identified one. So this exception to the Tucker Act is no barrier here. Neither does the Administrative Procedure Act bar petitioners’ Tucker Act suit. To be sure, in Bowen, this Court held in the Medicaid context that a State properly sued the HHS Secretary under the Administrative Procedure Act (not the Tucker Act) in district court (not the Court of Federal Claims) for failure to make statutorily required payments. See 487 U. S., at 882–887, 901–905. But Bowen is distinguishable on several scores. First, the relief requested there differed materially from what petitioners pursue here. In Bowen, the State did not seek money damages, but instead sued for prospective declaratory and injunctive relief to clarify the extent of the Government’s ongoing obligations under the Medicaid program. Unlike §1342, which \"provide[s] compensation for specific instances of past injuries or labors,\" id., at 901, n. 31, the pertinent Medicaid provision was a \"grant-in-aid program,\" which \"direct[ed] the Secretary . . . to subsidize future state expenditures,\" id., at 906, n. 42. Thus, the suit in Bowen \"was not merely for past due sums, but for an injunction to correct the method of calculating payments going forward.\" Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, 212 (2002). And because the Court of Federal Claims \"does not have the general equitable powers of a district court to grant prospective relief,\" 487 U. S., at 905, the Court reasoned that Bowen belonged in district court. Second, the parties’ relationship in Bowen also differs from the one implicated here. The State had employed the Administrative Procedure Act in Bowen because of the litigants’ \"complex ongoing relationship,\" which made it important that a district court adjudicate future disputes. Id., at 905; see also id., at 900, n. 31. The Court added that the Administrative Procedure Act \"is tailored\" to \"[m]anaging the relationships between States and the Federal Government that occur over time and that involve constantly shifting balance sheets,\" while the Tucker Act is suited to \"remedy[ing] particular categories of past injuries or labors for which various federal statutes provide compensation.\" Id., at 904–905, n. 39. These observations confirm that petitioners properly sued the Government in the Court of Federal Claims. Petitioners’ prayer for relief under the Risk Corridors statute looks nothing like the requested redress in Bowen. Petitioners do not ask for prospective, nonmonetary relief to clarify future obligations; they seek specific sums already calculated, past due, and designed to compensate for completed labors. The Risk Corridors statute and Tucker Act allow them that remedy. And because the Risk Corridors program expired years ago, this litigation presents no special concern about managing a complex ongoing relation- ship or tracking ever-changing accounting sheets. Petitioners’ suit thus lies in the Tucker Act’s heartland.14 V In establishing the temporary Risk Corridors program, Congress created a rare money-mandating obligation requiring the Federal Government to make payments under §1342’s formula. And by failing to appropriate enough sums for payments already owed, Congress did simply that and no more: The appropriation bills neither repealed nor discharged §1342’s unique obligation. Lacking other statutory paths to relief, and absent a Bowen barrier, petitioners may seek to collect payment through a damages action in the Court of Federal Claims. 15 These holdings reflect a principle as old as the Nation itself: The Government should honor its obligations. Soon after ratification, Alexander Hamilton stressed this insight as a cornerstone of fiscal policy. \"States,\" he wrote, \"who observe their engagements . . . are respected and trusted: while the reverse is the fate of those . . . who pursue an opposite conduct.\" Report Relative to a Provision for the Support of Public Credit (Jan. 9, 1790), in 6 Papers of Alexander Hamilton 68 (H. Syrett & J. Cooke eds. 1962). Centuries later, this Court’s case law still concurs. The judgments of the Court of Appeals are reversed, and the cases are remanded for further proceedings consistent with this opinion."},
{"docket_number": "18-6210", "syllabus": "Petitioner Gerald Mitchell was arrested for operating a vehicle while intoxicated after a preliminary breath test registered a blood alcohol concentration (BAC) that was triple Wisconsin’s legal limit for driving. As is standard practice, the arresting officer drove Mitchell to a police station for a more reliable breath test using evidence-grade equipment. By the time Mitchell reached the station, he was too lethargic for a breath test, so the officer drove him to a nearby hospital for a blood test. Mitchell was unconscious by the time he arrived at the hospital, but his blood was drawn anyway under a state law that presumes that a person incapable of withdrawing implied consent to BAC testing has not done so. The blood analysis showed Mitchell’s BAC to be above the legal limit, and he was charged with violating two drunk-driving laws. Mitchell moved to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against \"unreasonable searches\" because it was conducted without a warrant. The trial court denied the motion, and Mitchell was convicted. On certification from the intermediate appellate court, the Wisconsin Supreme Court affirmed the lawfulness of Mitchell’s blood test. Held: The judgment is vacated, and the case is remanded. 2018 WI 84, 383 Wis. 2d 192, 914 N. W. 2d 151, vacated and remanded. JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE BREYER, and JUSTICE KAVANAUGH, concluded that when a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant. Pp. 5–17. (a) BAC tests are Fourth Amendment searches. See Birchfield v. North Dakota, 579 U. S. ___, ___. A warrant is normally required for a lawful search, but there are well-defined exceptions to this rule, including the \"exigent circumstances\" exception, which allows warrantless searches \"to prevent the imminent destruction of evidence.\" Missouri v. McNeely, 569 U. S. 141, 149. In McNeely, this Court held that the fleeting nature of blood-alcohol evidence alone was not enough to bring BAC testing within the exigency exception. Id., at 156. But in Schmerber v. California, 384 U. S. 757, the dissipation of BAC did justify a blood test of a drunk driver whose accident gave police other pressing duties, for then the further delay caused by a warrant application would indeed have threatened the destruction of evidence. Like Schmerber, unconscious-driver cases will involve a heightened degree of urgency for several reasons. And when the driver’s stupor or unconsciousness deprives officials of a reasonable opportunity to administer a breath test using evidence-grade equipment, a blood test will be essential for achieving the goals of BAC testing. Pp. 5–7. (b) Under the exigent circumstances exception, a warrantless search is allowed when \" ‘there is compelling need for official action and no time to secure a warrant.’ \" McNeely, 569 U. S., at 149. Pp. 7– 16. (1) There is clearly a \"compelling need\" for a blood test of drunkdriving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test. First, highway safety is a vital public interest—a \"compelling\" and \"paramount\" interest, Mackey v. Montrym, 443 U. S. 1, 17–18. Second, when it comes to promoting that interest, federal and state lawmakers have long been convinced that legal limits on a driver’s BAC make a big difference. And there is good reason to think that such laws have worked. Birchfield, 579 U. S., at ___. Third, enforcing BAC limits obviously requires a test that is accurate enough to stand up in court. Id., at ___. And such testing must be prompt because it is \"a biological certainty\" that \"[a]lcohol dissipates from the bloodstream,\" \"literally disappearing by the minute.\" McNeely, 569 U. S., at 169 (ROBERTS, C. J., concurring). Finally, when a breath test is unavailable to promote the interests served by legal BAC limits, \"a blood draw becomes necessary.\" Id., at 170. Pp. 9–12. (2) Schmerber demonstrates that an exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Because both conditions are met when a drunk-driving suspect is unconscious, Schmerber controls. A driver’s unconsciousness does not just create pressing needs; it is itself a medical emergency. In such a case, as in Schmerber, an officer could \"reasonably have believed that he was confronted with an emergency.\" 384 U. S., at 771. And in many unconscious-driver cases, the exigency will be especially acute. A driver so drunk as to lose consciousness is quite likely to crash, giving officers a slew of urgent tasks beyond that of securing medical care for the suspect—tasks that would require them to put off applying for a warrant. The time needed to secure a warrant may have shrunk over the years, but it has not disappeared; and forcing police to put off other urgent tasks for even a relatively short period of time may have terrible collateral costs. Pp. 12–16. (c) On remand, Mitchell may attempt to show that his was an unusual case, in which his blood would not have been drawn had police not been seeking BAC information and police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Pp. 16–17. JUSTICE THOMAS would apply a per se rule, under which the natural metabolization of alcohol in the blood stream \"creates an exigency once police have probable cause to believe the driver is drunk,\" regardless of whether the driver is conscious. Missouri v. McNeely, 569 U. S. 141, 178 (THOMAS, J., dissenting). Pp. 1–4.", "opinion": "In this case, we return to a topic that we have addressed twice in recent years: the circumstances under which a police officer may administer a warrantless blood alcohol concentration (BAC) test to a motorist who appears to have been driving under the influence of alcohol. We have previously addressed what officers may do in two broad categories of cases. First, an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the Fourth Amendment’s general requirement of a warrant. Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest. Today, we consider what police officers may do in a narrow but important category of cases: those in which the driver is unconscious and therefore cannot be given a breath test. In such cases, we hold, the exigent-circumstances rule almost always permits a blood test without a warrant. When a breath test is impossible, enforcement of the drunk-driving laws depends upon the administration of a blood test. And when a police officer encounters an unconscious driver, it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes even if the police were not seeking BAC information. In addition, police officers most frequently come upon unconscious drivers when they report to the scene of an accident, and under those circumstances, the officers’ many responsibilities—such as attending to other injured drivers or passengers and preventing further accidents—may be incompatible with the procedures that would be required to obtain a warrant. Thus, when a driver is unconscious, the general rule is that a warrant is not needed. I A In Birchfield v. North Dakota, 579 U. S. ___ (2016), we recounted the country’s efforts over the years to address the terrible problem of drunk driving. Today, \"all States have laws that prohibit motorists from driving with a [BAC] that exceeds a specified level.\" Id., at ___ (slip op., at 2). And to help enforce BAC limits, every State has passed what are popularly called implied-consent laws. Ibid. As \"a condition of the privilege of \" using the public roads, these laws require that drivers submit to BAC testing \"when there is sufficient reason to believe they are violating the State’s drunk-driving laws.\" Id., at ___, ___ (slip op., at 2, 6). Wisconsin’s implied-consent law is much like those of the other 49 States and the District of Columbia. It deems drivers to have consented to breath or blood tests if an officer has reason to believe they have committed one of several drug- or alcohol-related offenses.1 See Wis. Stat. §§343.305(2), (3). Officers seeking to conduct a BAC test must read aloud a statement declaring their intent to administer the test and advising drivers of their options and the implications of their choice. §343.305(4). If a driver’s BAC level proves too high, his license will be suspended; but if he refuses testing, his license will be revoked and his refusal may be used against him in court. See ibid. No test will be administered if a driver refuses— or, as the State would put it, \"withdraws\" his statutorily presumed consent. But \"[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have\" withdrawn it. §343.305(3)(b). See also §§343.305(3)(ar)1–2. More than half the States have provisions like this one regarding unconscious drivers. B The sequence of events that gave rise to this case began when Officer Alexander Jaeger of the Sheboygan Police Department received a report that petitioner Gerald Mitchell, appearing to be very drunk, had climbed into a van and driven off. Jaeger soon found Mitchell wandering near a lake. Stumbling and slurring his words, Mitchell could hardly stand without the support of two officers. Jaeger judged a field sobriety test hopeless, if not dangerous, and gave Mitchell a preliminary breath test. It registered a BAC level of 0.24%, triple the legal limit for driving in Wisconsin. Jaeger arrested Mitchell for operating a vehicle while intoxicated and, as is standard practice, drove him to a police station for a more reliable breath test using better equipment. On the way, Mitchell’s condition continued to deteriorate—so much so that by the time the squad car had reached the station, he was too lethargic even for a breath test. Jaeger therefore drove Mitchell to a nearby hospital for a blood test; Mitchell lost consciousness on the ride over and had to be wheeled in. Even so, Jaeger read aloud to a slumped Mitchell the standard statement giving drivers a chance to refuse BAC testing. Hearing no response, Jaeger asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC, about 90 minutes after his arrest, was 0.222%. Mitchell was charged with violating two related drunk-driving provisions. See §§346.63(1)(a), (b). He moved to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against \"unreasonable searches\" because it was conducted without a warrant. Wisconsin chose to rest its response on the notion that its implied-consent law (together with Mitchell’s free choice to drive on its highways) rendered the blood test a consensual one, thus curing any Fourth Amendment problem. In the end, the trial court denied Mitchell’s motion to suppress, and a jury found him guilty of the charged offenses. The intermediate appellate court certified two questions to the Wisconsin Supreme Court: first, whether compliance with the State’s implied-consent law was sufficient to show that Mitchell’s test was consistent with the Fourth Amendment and, second, whether a warrantless blood draw from an unconscious person violates the Fourth Amendment. See 2018 WI 84, ¶15, 383 Wis. 2d 192, 202–203, 914 N. W. 2d 151, 155–156 (2018). The Wisconsin Supreme Court affirmed Mitchell’s convictions, and we granted certiorari, 586 U. S. ___ (2019), to decide \"[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement,\" Pet. for Cert. ii. II In considering Wisconsin’s implied-consent law, we do not write on a blank slate. \"Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.\" Birchfield, 579 U. S., at ___ (slip op., at 36). But our decisions have not rested on the idea that these laws do what their popular name might seem to suggest—that is, create actual consent to all the searches they authorize. Instead, we have based our decisions on the precedent regarding the specific constitutional claims in each case, while keeping in mind the wider regulatory scheme developed over the years to combat drunk driving. That scheme is centered on legally specified BAC limits for drivers—limits enforced by the BAC tests promoted by implied-consent laws. Over the last 50 years, we have approved many of the defining elements of this scheme. We have held that forcing drunk-driving suspects to undergo a blood test does not violate their constitutional right against self-in-crimination. See Schmerber v. California, 384 U. S. 757, 765 (1966). Nor does using their refusal against them in court. See South Dakota v. Neville, 459 U. S. 553, 563 (1983). And punishing that refusal with automatic license revocation does not violate drivers’ due process rights if they have been arrested upon probable cause, Mackey v. Montrym, 443 U. S. 1 (1979); on the contrary, this kind of summary penalty is \"unquestionably legitimate.\" Neville, supra, at 560. These cases generally concerned the Fifth and Fourteenth Amendments, but motorists charged with drunk driving have also invoked the Fourth Amendment’s ban on \"unreasonable searches\" since BAC tests are \"searches.\" See Birchfield, 579 U. S., at ___ (slip op., at 14). Though our precedent normally requires a warrant for a lawful search, there are well-defined exceptions to this rule. In Birchfield, we applied precedent on the \"search-incident-to-arrest\" exception to BAC testing of conscious drunk-driving suspects. We held that their drunk-driving arrests, taken alone, justify warrantless breath tests but not blood tests, since breath tests are less intrusive, just as informative, and (in the case of conscious suspects) readily available. Id., at ___ (slip op., at 35). We have also reviewed BAC tests under the \"exigent circumstances\" exception—which, as noted, allows warrantless searches \"to prevent the imminent destruction of evidence.\" Missouri v. McNeely, 569 U. S. 141, 149 (2013). In McNeely, we were asked if this exception covers BAC testing of drunk-driving suspects in light of the fact that blood-alcohol evidence is always dissipating due to \"natural metabolic processes.\" Id., at 152. We answered that the fleeting quality of BAC evidence alone is not enough. Id., at 156. But in Schmerber it did justify a blood test of a drunk driver who had gotten into a car accident that gave police other pressing duties, for then the \"further delay\" caused by a warrant application really \"would have threatened the destruction of evidence.\" McNeely, supra, at 152 (emphasis added). Like Schmerber, this case sits much higher than McNeely on the exigency spectrum. McNeely was about the minimum degree of urgency common to all drunk-driving cases. In Schmerber, a car accident heightened that urgency. And here Mitchell’s medical condition did just the same. Mitchell’s stupor and eventual unconsciousness also deprived officials of a reasonable opportunity to administer a breath test. To be sure, Officer Jaeger managed to conduct \"a preliminary breath test\" using a portable machine when he first encountered Mitchell at the lake. App. to Pet. for Cert. 60a. But he had no reasonable opportunity to give Mitchell a breath test using \"evidence-grade breath testing machinery.\" Birchfield, 579 U. S., at ___ (SOTOMAYOR, J., concurring in part and dissenting in part) (slip op., at 10). As a result, it was reasonable for Jaeger to seek a better breath test at the station; he acted with reasonable dispatch to procure one; and when Mitchell’s condition got in the way, it was reasonable for Jaeger to pursue a blood test. As JUSTICE SOTOMAYOR explained in her partial dissent in Birchfield: \"There is a common misconception that breath tests are conducted roadside, immediately after a driver is arrested. While some preliminary testing is conducted roadside, reliability concerns with roadside tests confine their use in most circumstances to establishing probable cause for an arrest. . . . The standard evidentiary breath test is conducted after a motorist is arrested and transported to a police station, governmental building, or mobile testing facility where officers can access reliable, evidence-grade breath testing machinery.\" Id., at ___ (slip op., at 10). Because the \"standard evidentiary breath test is conducted after a motorist is arrested and transported to a police station\" or another appropriate facility, ibid., the important question here is what officers may do when a driver’s unconsciousness (or stupor) eliminates any reasonable opportunity for that kind of breath test. III The Fourth Amendment guards the \"right of the people to be secure in their persons . . . against unreasonable searches\" and provides that \"no Warrants shall issue, but upon probable cause.\" A blood draw is a search of the  person, so we must determine if its administration here without a warrant was reasonable. See Birchfield, 579 U. S. at ___ (slip op., at 14). Though we have held that a warrant is normally required, we have also \"made it clear that there are exceptions to the warrant requirement.\" Illinois v. McArthur, 531 U. S. 326, 330 (2001). And under the exception for exigent circumstances, a warrantless search is allowed when \"‘there is compelling need for official action and no time to secure a warrant.’\" McNeely, supra, at 149 (quoting Michigan v. Tyler, 436 U. S. 499, 509 (1978)). In McNeely, we considered how the exigent-circumstances exception applies to the broad category of cases in which a police officer has probable cause to believe that a motorist was driving under the influence of alcohol, and we do not revisit that question. Nor do we settle whether the exigent-circumstances exception covers the specific facts of this case.2 Instead, we address how the exception bears on the category of cases encompassed by the question on which we granted certiorari—those involving unconscious drivers.3 In those cases, the need for a blood test is compelling, and an officer’s duty to attend to more pressing needs may leave no time to seek a warrant. A The importance of the needs served by BAC testing is hard to overstate. The bottom line is that BAC tests are needed for enforcing laws that save lives. The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates. So BAC tests are crucial links in a chain on which vital interests hang. And when a breath test is unavailable to advance those aims, a blood test becomes essential. Here we add a word about each of these points. First, highway safety is a vital public interest. For decades, we have strained our vocal chords to give adequate expression to the stakes. We have called highway safety a \"compelling interest,\" Mackey, 443 U. S., at 19; we have called it \"paramount,\" id., at 17. Twice we have referred to the effects of irresponsible driving as \"slaughter\" comparable to the ravages of war. Breithaupt v. Abram, 352 U. S. 432, 439 (1957); Perez v. Campbell, 402 U. S. 637, 657, 672 (1971) (Blackmun, J., concurring in result in part and dissenting in part). We have spoken of \"carnage,\" Neville, 459 U. S., at 558–559, and even \"frightful carnage,\" Tate v. Short, 401 U. S. 395, 401 (1971) (Blackmun, J., concurring). The frequency of preventable collisions, we have said, is \"tragic,\" Neville, supra, at 558, and \"astounding,\" Breithaupt, supra, at 439. And behind this fervent language lie chilling figures, all captured in the fact that from 1982 to 2016, alcohol-related accidents took roughly 10,000 to 20,000 lives in this Nation every single year. See National Highway Traffic Safety Admin. (NHTSA), Traffic Safety Facts 2016, p. 40 (May 2018). In the best years, that would add up to more than one fatality per hour. Second, when it comes to fighting these harms and promoting highway safety, federal and state lawmakers have long been convinced that specified BAC limits make a big difference. States resorted to these limits when earlier laws that included no \"statistical definition of intoxication\" proved ineffectual or hard to enforce. See Birchfield, 579 U. S., at ___–___ (slip op., at 2–3). The maximum permissible BAC, initially set at 0.15%, was first lowered to 0.10% and then to 0.08%. Id., at ___, ___– ___ (slip op., at 3, 6–7). Congress encouraged this process by conditioning the award of federal highway funds on the establishment of a BAC limit of 0.08%, see 23 U. S. C. §163(a); 23 CFR §1225.1 (2012), and every State has adopted this limit.4 Not only that, many States, including Wisconsin, have passed laws imposing increased penalties for recidivists or for drivers with a BAC level that exceeds a higher threshold. See Wis. Stat. §346.65(2)(am); Birchfield, 579 U. S., at ___ (slip op., at 7). There is good reason to think this strategy has worked. As we noted in Birchfield, these tougher measures corresponded with a dramatic drop in highway deaths and injuries: From the mid-1970’s to the mid-1980’s, \"the number of annual fatalities averaged 25,000; by 2014 . . . , the number had fallen to below 10,000.\" Id., at ___ (slip op., at 6). Third, enforcing BAC limits obviously requires a test that is accurate enough to stand up in court, id., at ___– ___ (slip op., at 3–5); see also McNeely, 569 U. S., at 159– 160 (plurality opinion). And we have recognized that \"[e]xtraction of blood samples for testing is a highly effective means of \" measuring \"the influence of alcohol.\" Schmerber, 384 U. S., at 771. Enforcement of BAC limits also requires prompt testing because it is \"a biological certainty\" that \"[a]lcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. . . . Evidence is literally disappearing by the minute.\" McNeely, 569 U. S., at 169 (opinion of ROBERTS, C. J.). As noted, the ephemeral nature of BAC was \"essential to our holding in Schmerber,\" which itself allowed a warrantless blood test for BAC. Id., at 152 (opinion of the Court). And even when we later held that the exigent-circumstances exception would not permit a warrantless blood draw in every drunk-driving case, we acknowledged that delays in BAC testing can \"raise questions about . . . accuracy.\" Id., at 156. It is no wonder, then, that the implied-consent laws that incentivize prompt BAC testing have been with us for 65 years and now exist in all 50 States. Birchfield, supra, at ___ (slip op., at 6). These laws and the BAC tests they require are tightly linked to a regulatory scheme that serves the most pressing of interests. Finally, when a breath test is unavailable to promote those interests, \"a blood draw becomes necessary.\" McNeely, 569 U. S., at 170 (opinion of ROBERTS, C. J.). Thus, in the case of unconscious drivers, who cannot blow into a breathalyzer, blood tests are essential for achieving the compelling interests described above. Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk. It would be perverse if the more wanton behavior were rewarded—if the more harrowing threat were harder to punish. For these reasons, there clearly is a \"compelling need\" for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test. Id., at 149 (opinion of the Court) (internal quotation marks omitted). The only question left, under our exigency doctrine, is whether this compelling need justifies a warrantless search because there is, furthermore, \"‘no time to secure a warrant.’\" Ibid. B We held that there was no time to secure a warrant before a blood test of a drunk-driving suspect in Schmerber because the officer there could \"reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.\" 384 U. S., at 770 (internal quotation marks omitted). So even if the constant dissipation of BAC evidence alone does not create an exigency, see McNeely, supra, at 150–151, Schmerber shows that it does so when combined with other pressing needs: \"We are told that [1] the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where [2] time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case [without a warrant] was . . . appropriate . . . .\" 384 U. S., at 770–771. Thus, exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful. 1 In Schmerber, the extra factor giving rise to urgent needs that would only add to the delay caused by a warrant application was a car accident; here it is the driver’s unconsciousness. Indeed, unconsciousness does not just create pressing needs; it is itself a medical emergency.5 It means that the suspect will have to be rushed to the hospital or similar facility not just for the blood test itself but for urgent medical care.6 Police can reasonably anticipate that such a driver might require monitoring, positioning, and support on the way to the hospital;7 that his blood may be drawn anyway, for diagnostic purposes, immediately on arrival;8 and that immediate medical treatment could delay (or otherwise distort the results of) a blood draw conducted later, upon receipt of a warrant, thus reducing its evidentiary value. See McNeely, supra, at 156 (plurality opinion). All of that sets this case apart from the uncomplicated drunk-driving scenarios addressed in McNeely. Just as the ramifications of a car accident pushed Schmerber over the line into exigency, so does the condition of an unconscious driver bring his blood draw under the exception. In such a case, as in Schmerber, an officer could \"reasonably have believed that he was confronted with an emergency.\" 384 U. S., at 770. Indeed, in many unconscious-driver cases, the exigency will be more acute, as elaborated in the briefing and argument in this case. A driver so drunk as to lose consciousness is quite likely to crash, especially if he passes out before managing to park. And then the accident might give officers a slew of urgent tasks beyond that of securing (and working around) medical care for the suspect. Police may have to ensure that others who are injured receive prompt medical attention; they may have to provide first aid themselves until medical personnel arrive at the scene. In some cases, they may have to deal with fatalities. They may have to preserve evidence at the scene and block or redirect traffic to prevent further accidents. These pressing matters, too, would require responsible officers to put off applying for a warrant, and that would only exacerbate the delay—and imprecision—of any subsequent BAC test. In sum, all these rival priorities would put officers, who must often engage in a form of triage, to a dilemma. It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits. This is just the kind of scenario for which the exigency rule was born—just the kind of grim dilemma it lives to dissolve. 2 Mitchell objects that a warrantless search is unnecessary in cases involving unconscious drivers because warrants these days can be obtained faster and more easily. But even in our age of rapid communication, \"[w]arrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. Telephonic and electronic warrants may still require officers to follow time-consuming formalities designed to create an adequate record, such as preparing a duplicate warrant before calling the magistrate judge. . . . And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest.\" McNeely, 569 U. S., at 155. In other words, with better technology, the time required has shrunk, but it has not disappeared. In the emergency scenarios created by unconscious drivers, forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs. That is just what it means for these situations to be emergencies. IV When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary. The judgment of the Supreme Court of Wisconsin is vacated, and the case is remanded for further proceedings."},
{"docket_number": "18-422", "syllabus": "Voters and other plaintiffs in North Carolina and Maryland filed suits challenging their States’ congressional districting maps as unconstitutional partisan gerrymanders. The North Carolina plaintiffs claimed that the State’s districting plan discriminated against Democrats, while the Maryland plaintiffs claimed that their State’s plan discriminated against Republicans. The plaintiffs alleged violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2. The District Courts in both cases ruled in favor of the plaintiffs, and the defendants appealed directly to this Court. Held: Partisan gerrymandering claims present political questions beyond the reach of the federal courts. Pp. 6–34. (a) In these cases, the Court is asked to decide an important question of constitutional law. Before it does so, the Court \"must find that the question is presented in a ‘case’ or ‘controversy’ that is . . . ‘of a Judiciary Nature.’ \" DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342. While it is \"the province and duty of the judicial department to say what the law is,\" Marbury v. Madison, 1 Cranch 137, 177, sometimes the law is that the Judiciary cannot entertain a claim because it presents a nonjusticiable \"political question,\" Baker v. Carr, 369 U. S. 186, 217. Among the political question cases this Court has identified are those that lack \"judicially discoverable and manageable standards for resolving [them].\" Ibid. This Court’s partisan gerrymandering cases have left unresolved the question whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere. See Gill v. Whitford, 585 U. S. ___, ___. Partisan gerrymandering was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution. They addressed the election of Representatives to Congress in the Elections Clause, Art. I, §4, cl. 1, assigning to state legislatures the power to prescribe the \"Times, Places and Manner of holding Elections\" for Members of Congress, while giving Congress the power to \"make or alter\" any such regulations. Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering. But the Framers did not set aside all electoral issues as questions that only Congress can resolve. In two areas—one-person, one-vote and racial gerrymandering—this Court has held that there is a role for the courts with respect to at least some issues that could arise from a State’s drawing of congressional districts. But the history of partisan gerrymandering is not irrelevant. Aware of electoral districting problems, the Framers chose a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress, with no suggestion that the federal courts had a role to play. Courts have nonetheless been called upon to resolve a variety of questions surrounding districting. The claim of population inequality among districts in Baker v. Carr, for example, could be decided under basic equal protection principles. 369 U. S., at 226. Racial discrimination in districting also raises constitutional issues that can be addressed by the federal courts. See Gomillion v. Lightfoot, 364 U. S. 339, 340. Partisan gerrymandering claims have proved far more difficult to adjudicate, in part because \"a jurisdiction may engage in constitutional political gerrymandering.\" Hunt v. Cromartie, 526 U. S. 541, 551. To hold that legislators cannot take their partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. The \"central problem\" is \"determining when political gerrymandering has gone too far.\" Vieth v. Jubelirer, 541 U. S. 267, 296 (plurality opinion). Despite considerable efforts in Gaffney v. Cummings, 412 U. S. 735, 753; Davis v. Bandemer, 478 U. S. 109, 116– 117; Vieth, 541 U. S., at 272–273; and League of United Latin American Citizens v. Perry, 548 U. S. 399, 414 (LULAC), this Court’s prior cases have left \"unresolved whether . . . claims [of legal right] may be brought in cases involving allegations of partisan gerrymandering,\" Gill, 585 U. S., at ___. Two \"threshold questions\" remained: standing, which was addressed in Gill, and \"whether [such] claims are justiciable.\" Ibid. Pp. 6–14. (b) Any standard for resolving partisan gerrymandering claims must be grounded in a \"limited and precise rationale\" and be \"clear, manageable, and politically neutral.\" Vieth, 541 U. S., at 306–308 (Kennedy, J., concurring in judgment). The question is one of degree: How to \"provid[e] a standard for deciding how much partisan dominance is too much.\" LULAC, 548 U. S., at 420 (opinion of Kennedy, J.). Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Such claims invariably sound in a desire for proportional representation, but the Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. It is not even clear what fairness looks like in this context. It may mean achieving a greater number of competitive districts by undoing packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But it could mean engaging in cracking and packing to ensure each party its \"appropriate\" share of \"safe\" seats. Or perhaps it should be measured by adherence to \"traditional\" districting criteria. Deciding among those different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments. And it is only after determining how to define fairness that one can even begin to answer the determinative question: \"How much is too much?\" The fact that the Court can adjudicate one-person, one-vote claims does not mean that partisan gerrymandering claims are justiciable. This Court’s one-person, one-vote cases recognize that each person is entitled to an equal say in the election of representatives. It hardly follows from that principle that a person is entitled to have his political party achieve representation commensurate to its share of statewide support. Vote dilution in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. That requirement does not extend to political parties; it does not mean that each party must be influential in proportion to the number of its supporters. The racial gerrymandering cases are also inapposite: They call for the elimination of a racial classification, but a partisan gerrymandering claim cannot ask for the elimination of partisanship. Pp. 15–21. (c) None of the proposed \"tests\" for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable. Pp. 22–30. (1) The Common Cause District Court concluded that all but one of the districts in North Carolina’s 2016 Plan violated the Equal Protection Clause by intentionally diluting the voting strength of Democrats. It applied a three-part test, examining intent, effects, and causation. The District Court’s \"predominant intent\" prong is borrowed from the test used in racial gerrymandering cases. However, unlike race-based decisionmaking, which is \"inherently suspect,\" Miller v. Johnson, 515 U. S. 900, 915, districting for some level of partisan advantage is not unconstitutional. Determining that lines were drawn on the basis of partisanship does not indicate that districting was constitutionally impermissible. The Common Cause District Court also required the plaintiffs to show that vote dilution is \"likely to persist\" to such a degree that the elected representatives will feel free to ignore the concerns of the supporters of the minority party. Experience proves that accurately predicting electoral outcomes is not simple, and asking judges to predict how a particular districting map will perform in future elections risks basing constitutional holdings on unstable ground outside judicial expertise. The District Court’s third prong—which gave the defendants an opportunity to show that discriminatory effects were due to a \"legitimate redistricting objective\"—just restates the question asked at the \"predominant intent\" prong. Pp. 22–25. (2) The District Courts also found partisan gerrymandering claims justiciable under the First Amendment, coalescing around a basic three-part test: proof of intent to burden individuals based on their voting history or party affiliation, an actual burden on political speech or associational rights, and a causal link between the invidious intent and actual burden. But their analysis offers no \"clear\" and \"manageable\" way of distinguishing permissible from impermissible partisan motivation. Pp. 25–27. (3) Using a State’s own districting criteria as a baseline from which to measure how extreme a partisan gerrymander is would be indeterminate and arbitrary. Doing so would still leave open the question of how much political motivation and effect is too much. Pp. 27–29. (4) The North Carolina District Court further held that the 2016 Plan violated Article I, §2, and the Elections Clause, Art. I, §4, cl. 1. But the Vieth plurality concluded—without objection from any other Justice—that neither §2 nor §4 \"provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.\" 541 U. S., at 305. Any assertion that partisan gerrymanders violate the core right of voters to choose their representatives is an objection more likely grounded in the Guarantee Clause of Article IV, §4, which \"guarantee[s] to every State in [the] Union a Republican Form of Government.\" This Court has several times concluded that the Guarantee Clause does not provide the basis for a justiciable claim. See, e.g., Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118. Pp. 29–30. (d) The conclusion that partisan gerrymandering claims are not justiciable neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void. Numerous States are actively addressing the issue through state constitutional amendments and legislation placing power to draw electoral districts in the hands of independent commissions, mandating particular districting criteria for their mapmakers, or prohibiting drawing district lines for partisan advantage. The Framers also gave Congress the power to do something about partisan gerrymandering in the Elections Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open. Pp. 30–34. 318 F. Supp. 3d 777 and 348 F. Supp. 3d 493, vacated and remanded.", "opinion": "Voters and other plaintiffs in North Carolina and Maryland challenged their States’ congressional districting maps as unconstitutional partisan gerrymanders. The North Carolina plaintiffs complained that the State’s districting plan discriminated against Democrats; the Maryland plaintiffs complained that their State’s plan discriminated against Republicans. The plaintiffs alleged that the gerrymandering violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2, of the Constitution. The District Courts in both cases ruled in favor of the plaintiffs, and the defendants appealed directly to this Court. These cases require us to consider once again whether claims of excessive partisanship in districting are \"justiciable\"—that is, properly suited for resolution by the federal courts. This Court has not previously struck down a districting plan as an unconstitutional partisan gerrymander, and has struggled without success over the past several decades to discern judicially manageable standards for deciding such claims. The districting plans at issue here are highly partisan, by any measure. The question is whether the courts below appropriately exercised judicial power when they found them unconstitutional as well. I A The first case involves a challenge to the congressional redistricting plan enacted by the Republican-controlled North Carolina General Assembly in 2016. Rucho v. Common Cause, No. 18–422. The Republican legislators leading the redistricting effort instructed their mapmaker to use political data to draw a map that would produce a congressional delegation of ten Republicans and three Democrats. 318 F. Supp. 3d 777, 807–808 (MDNC 2018). As one of the two Republicans chairing the redistricting committee stated, \"I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.\" Id., at 809. He further explained that the map was drawn with the aim of electing ten Republicans and three Democrats because he did \"not believe it [would be] possible to draw a map with 11 Republicans and 2 Democrats.\" Id., at 808. One Democratic state senator objected that entrenching the 10–3 advantage for Republicans was not \"fair, reasonable, [or] balanced\" because, as recently as 2012, \"Democratic congressional candidates had received more votes on a statewide basis than Republican candidates.\" Ibid. The General Assembly was not swayed by that objection and approved the 2016 Plan by a party-line vote. Id., at 809. In November 2016, North Carolina conducted congressional elections using the 2016 Plan, and Republican candidates won 10 of the 13 congressional districts. Id., at 810. In the 2018 elections, Republican candidates won nine congressional districts, while Democratic candidates won three. The Republican candidate narrowly prevailed in the remaining district, but the State Board of Elections called a new election after allegations of fraud. This litigation began in August 2016, when the North Carolina Democratic Party, Common Cause (a nonprofit organization), and 14 individual North Carolina voters sued the two lawmakers who had led the redistricting effort and other state defendants in Federal District Court. Shortly thereafter, the League of Women Voters of North Carolina and a dozen additional North Carolina voters filed a similar complaint. The two cases were consolidated. The plaintiffs challenged the 2016 Plan on multiple constitutional grounds. First, they alleged that the Plan violated the Equal Protection Clause of the Fourteenth Amendment by intentionally diluting the electoral strength of Democratic voters. Second, they claimed that the Plan violated their First Amendment rights by retaliating against supporters of Democratic candidates on the basis of their political beliefs. Third, they asserted that the Plan usurped the right of \"the People\" to elect their preferred candidates for Congress, in violation of the requirement in Article I, §2, of the Constitution that Members of the House of Representatives be chosen \"by the People of the several States.\" Finally, they alleged that the Plan violated the Elections Clause by exceeding the State’s delegated authority to prescribe the \"Times, Places and Manner of holding Elections\" for Members of Congress. After a four-day trial, the three-judge District Court unanimously concluded that the 2016 Plan violated the Equal Protection Clause and Article I of the Constitution. The court further held, with Judge Osteen dissenting, that the Plan violated the First Amendment. Common Cause v. Rucho, 279 F. Supp. 3d 587 (MDNC 2018). The defendants appealed directly to this Court under 28 U. S. C. §1253. While that appeal was pending, we decided Gill v. Whitford, 585 U. S. ___ (2018), a partisan gerrymandering case out of Wisconsin. In that case, we held that a plaintiff asserting a partisan gerrymandering claim based on a theory of vote dilution must establish standing by showing he lives in an allegedly \"cracked\" or \"packed\" district. Id., at ___ (slip op., at 17). A \"cracked\" district is one in which a party’s supporters are divided among multiple districts, so that they fall short of a majority in each; a \"packed\" district is one in which a party’s supporters are highly concentrated, so they win that district by a large margin, \"wasting\" many votes that would improve their chances in others. Id., at ___–___ (slip op., at 3–4). After deciding Gill, we remanded the present case for further consideration by the District Court. 585 U. S. ___ (2018). On remand, the District Court again struck down the 2016 Plan. 318 F. Supp. 3d 777. It found standing and concluded that the case was appropriate for judicial resolution. On the merits, the court found that \"the General Assembly’s predominant intent was to discriminate against voters who supported or were likely to support non-Republican candidates,\" and to \"entrench Republican candidates\" through widespread cracking and packing of Democratic voters. Id., at 883–884. The court rejected the defendants’ arguments that the distribution of Republican and Democratic voters throughout North Carolina and the interest in protecting incumbents neutrally explained the 2016 Plan’s discriminatory effects. Id., at 896–899. In the end, the District Court held that 12 of the 13 districts constituted partisan gerrymanders that violated the Equal Protection Clause. Id., at 923. The court also agreed with the plaintiffs that the 2016 Plan discriminated against them because of their political speech and association, in violation of the First Amendment. Id., at 935. Judge Osteen dissented with respect to that ruling. Id., at 954–955. Finally, the District Court concluded that the 2016 Plan violated the Elections Clause and Article I, §2. Id., at 935–941. The District Court enjoined the State from using the 2016 Plan in any election after the November 2018 general election. Id., at 942. The defendants again appealed to this Court, and we postponed jurisdiction. 586 U. S. ___ (2019). B The second case before us is Lamone v. Benisek, No. 18– 726. In 2011, the Maryland Legislature—dominated by Democrats—undertook to redraw the lines of that State’s eight congressional districts. The Governor at the time, Democrat Martin O’Malley, led the process. He appointed a redistricting committee to help redraw the map, and asked Congressman Steny Hoyer, who has described himself as a \"serial gerrymanderer,\" to advise the committee. 348 F. Supp. 3d 493, 502 (Md. 2018). The Governor later testified that his aim was to \"use the redistricting process to change the overall composition of Maryland’s congressional delegation to 7 Democrats and 1 Republican by flipping\" one district. Ibid. \"[A] decision was made to go for the Sixth,\" ibid., which had been held by a Republican for nearly two decades. To achieve the required equal population among districts, only about 10,000 residents needed to be removed from that district. Id., at 498. The 2011 Plan accomplished that by moving roughly 360,000 voters out of the Sixth District and moving 350,000 new voters in. Overall, the Plan reduced the number of registered Republicans in the Sixth District by about 66,000 and increased the number of registered Democrats by about 24,000. Id., at 499–501. The map was adopted by a party-line vote. Id., at 506. It was used in the 2012 election and succeeded in flipping the Sixth District. A Democrat has held the seat ever since. In November 2013, three Maryland voters filed this lawsuit. They alleged that the 2011 Plan violated the First Amendment, the Elections Clause, and Article I, §2, of the Constitution. After considerable procedural skirmishing and litigation over preliminary relief, the District Court entered summary judgment for the plaintiffs. 348 F. Supp. 3d 493. It concluded that the plaintiffs’ claims were justiciable, and that the Plan violated the First Amendment by diminishing their \"ability to elect their candidate of choice\" because of their party affiliation and voting history, and by burdening their associational rights. Id., at 498. On the latter point, the court relied upon findings that Republicans in the Sixth District \"were burdened in fundraising, attracting volunteers, campaigning, and generating interest in voting in an atmosphere of general confusion and apathy.\" Id., at 524. The District Court permanently enjoined the State from using the 2011 Plan and ordered it to promptly adopt a new plan for the 2020 election. Id., at 525. The defendants appealed directly to this Court under 28 U. S. C. §1253. We postponed jurisdiction. 586 U. S. ___ (2019). II A Article III of the Constitution limits federal courts to deciding \"Cases\" and \"Controversies.\" We have understood that limitation to mean that federal courts can address only questions \"historically viewed as capable of resolution through the judicial process.\" Flast v. Cohen, 392 U. S. 83, 95 (1968). In these cases we are asked to decide an important question of constitutional law. \"But before we do so, we must find that the question is presented in a ‘case’ or ‘controversy’ that is, in James Madison’s words, ‘of a Judiciary Nature.’\" DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342 (2006) (quoting 2 Records of the Federal Convention of 1787, p. 430 (M. Farrand ed. 1966)). Chief Justice Marshall famously wrote that it is \"the province and duty of the judicial department to say what the law is.\" Marbury v. Madison, 1 Cranch 137, 177 (1803). Sometimes, however, \"the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.\" Vieth v. Jubelirer, 541 U. S. 267, 277 (2004) (plurality opinion). In such a case the claim is said to present a \"political question\" and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction. Baker v. Carr, 369 U. S. 186, 217 (1962). Among the political question cases the Court has identified are those that lack \"judicially discoverable and manageable standards for resolving [them].\" Ibid. Last Term in Gill v. Whitford, we reviewed our partisan gerrymandering cases and concluded that those cases \"leave unresolved whether such claims may be brought.\" 585 U. S., at ___ (slip op., at 13). This Court’s authority to act, as we said in Gill, is \"grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff ’s particular claim of legal right.\" Ibid. The question here is whether there is an \"appropriate role for the Federal Judiciary\" in remedying the problem of partisan gerrymandering—whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere. Id., at ___ (slip op., at 8). B Partisan gerrymandering is nothing new. Nor is frustration with it. The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution. See Vieth, 541 U. S., at 274 (plurality opinion). During the very first congressional elections, George Washington and his Federalist allies accused Patrick Henry of trying to gerrymander Virginia’s districts against their candidates—in particular James Madison, who ultimately prevailed over fellow future President James Monroe. Hunter, The First Gerrymander? 9 Early Am. Studies 792–794, 811 (2011). See 5 Writings of Thomas Jefferson 71 (P. Ford ed. 1895) (Letter to W. Short (Feb. 9, 1789)) (\"Henry has so modelled the districts for representatives as to tack Orange [county] to counties where he himself has great influence that Madison may not be elected into the lower federal house\"). In 1812, Governor of Massachusetts and future Vice President Elbridge Gerry notoriously approved congressional districts that the legislature had drawn to aid the Democratic-Republican Party. The moniker \"gerrymander\" was born when an outraged Federalist newspaper observed that one of the misshapen districts resembled a salamander. See Vieth, 541 U. S., at 274 (plurality opinion); E. Griffith, The Rise and Development of the Gerrymander 17–19 (1907). \"By 1840, the gerrymander was a recognized force in party politics and was generally attempted in all legislation enacted for the formation of election districts. It was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength.\" Id., at 123. The Framers addressed the election of Representatives to Congress in the Elections Clause. Art. I, §4, cl. 1. That provision assigns to state legislatures the power to prescribe the \"Times, Places and Manner of holding Elections\" for Members of Congress, while giving Congress the power to \"make or alter\" any such regulations. Whether to give that supervisory authority to the National Government was debated at the Constitutional Convention. When those opposed to such congressional oversight moved to strike the relevant language, Madison came to its defense: \"[T]he State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local coveniency or prejudices. . . . Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.\" 2 Records of the Federal Convention of 1787, at 240– 241. During the subsequent fight for ratification, the provision remained a subject of debate. Antifederalists predicted that Congress’s power under the Elections Clause would allow Congress to make itself \"omnipotent,\" setting the \"time\" of elections as never or the \"place\" in difficult to reach corners of the State. Federalists responded that, among other justifications, the revisionary power was necessary to counter state legislatures set on undermining fair representation, including through malapportionment. M. Klarman, The Framers’ Coup: The Making of the United States Constitution 340–342 (2016). The Federalists were, for example, concerned that newly developing population centers would be deprived of their proper electoral weight, as some cities had been in Great Britain. See 6 The Documentary History of the Ratification of the Constitution: Massachusetts 1278–1279 (J. Kaminski & G. Saladino eds. 2000). Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering. The Apportionment Act of 1842, which required single-member districts for the first time, specified that those districts be \"composed of contiguous territory,\" Act of June 25, 1842, ch. 47, 5 Stat. 491, in \"an attempt to forbid the practice of the gerrymander,\" Griffith, supra, at 12. Later statutes added requirements of compactness and equality of population. Act of Jan. 16, 1901, ch. 93, §3, 31 Stat. 733; Act of Feb. 2, 1872, ch. 11, §2, 17 Stat. 28. (Only the single member district requirement remains in place today. 2 U. S. C. §2c.) See Vieth, 541 U. S., at 276 (plurality opinion). Congress also used its Elections Clause power in 1870, enacting the first comprehensive federal statute dealing with elections as a way to enforce the Fifteenth Amendment. Force Act of 1870, ch. 114, 16 Stat. 140. Starting in the 1950s, Congress enacted a series of laws to protect the right to vote through measures such as the suspension of literacy tests and the prohibition of English-only elections. See, e.g., 52 U. S. C. §10101 et seq. Appellants suggest that, through the Elections Clause, the Framers set aside electoral issues such as the one before us as questions that only Congress can resolve. See Baker, 369 U. S., at 217. We do not agree. In two areas— one-person, one-vote and racial gerrymandering—our cases have held that there is a role for the courts with respect to at least some issues that could arise from a State’s drawing of congressional districts. See Wesberry v. Sanders, 376 U. S. 1 (1964); Shaw v. Reno, 509 U. S. 630 (1993) (Shaw I ). But the history is not irrelevant. The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress. As Alexander Hamilton explained, \"it will . . . not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter, and ultimately in the former.\" The Federalist No. 59, p. 362 (C. Rossiter ed. 1961). At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of courts doing such a thing. C Courts have nevertheless been called upon to resolve a variety of questions surrounding districting. Early on, doubts were raised about the competence of the federal courts to resolve those questions. See Wood v. Broom, 287 U. S. 1 (1932); Colegrove v. Green, 328 U. S. 549 (1946). In the leading case of Baker v. Carr, voters in Tennessee complained that the State’s districting plan for state representatives \"debase[d]\" their votes, because the plan was predicated on a 60-year-old census that no longer reflected the distribution of population in the State. The plaintiffs argued that votes of people in overpopulated districts held less value than those of people in less-populated districts, and that this inequality violated the Equal Protection Clause of the Fourteenth Amendment. The District Court dismissed the action on the ground that the claim was not justiciable, relying on this Court’s precedents, including Colegrove. Baker v. Carr, 179 F. Supp. 824, 825, 826 (MD Tenn. 1959). This Court reversed. It identified various considerations relevant to determining whether a claim is a nonjusticiable political question, including whether there is \"a lack of judicially discoverable and manageable standards for resolving it.\" 369 U. S., at 217. The Court concluded that the claim of population inequality among districts did not fall into that category, because such a claim could be decided under basic equal protection principles. Id., at 226. In Wesberry v. Sanders, the Court extended its ruling to malapportionment of congressional districts, holding that Article I, §2, required that \"one man’s vote in a congressional election is to be worth as much as another’s.\" 376 U. S., at 8. Another line of challenges to districting plans has focused on race. Laws that explicitly discriminate on the basis of race, as well as those that are race neutral on their face but are unexplainable on grounds other than race, are of course presumptively invalid. The Court applied those principles to electoral boundaries in Gomillion v. Lightfoot, concluding that a challenge to an \"uncouth twenty-eight sided\" municipal boundary line that excluded black voters from city elections stated a constitutional claim. 364 U. S. 339, 340 (1960). In Wright v. Rockefeller, 376 U. S. 52 (1964), the Court extended the reasoning of Gomillion to congressional districting. See Shaw I, 509 U. S., at 645. Partisan gerrymandering claims have proved far more difficult to adjudicate. The basic reason is that, while it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage in racial discrimination in districting, \"a jurisdiction may engage in constitutional political gerrymandering.\" Hunt v. Cromartie, 526 U. S. 541, 551 (1999) (citing Bush v. Vera, 517 U. S. 952, 968 (1996); Shaw v. Hunt, 517 U. S. 899, 905 (1996) (Shaw II ); Miller v. Johnson, 515 U. S. 900, 916 (1995); Shaw I, 509 U. S., at 646). See also Gaffney v. Cummings, 412 U. S. 735, 753 (1973) (recognizing that \"[p]olitics and political considerations are inseparable from districting and apportionment\"). To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. The \"central problem\" is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is \"determining when political gerrymandering has gone too far.\" Vieth, 541 U. S., at 296 (plurality opinion). See League of United Latin American Citizens v. Perry, 548 U. S. 399, 420 (2006) (LULAC) (opinion of Kennedy, J.) (difficulty is \"providing a standard for deciding how much partisan dominance is too much\"). We first considered a partisan gerrymandering claim in Gaffney v. Cummings in 1973. There we rejected an equal protection challenge to Connecticut’s redistricting plan, which \"aimed at a rough scheme of proportional representation of the two major political parties\" by \"wiggl[ing] and joggl[ing] boundary lines\" to create the appropriate number of safe seats for each party. 412 U. S., at 738, 752, n. 18 (internal quotation marks omitted). In upholding the State’s plan, we reasoned that districting \"inevitably has and is intended to have substantial political consequences.\" Id., at 753. Thirteen years later, in Davis v. Bandemer, we addressed a claim that Indiana Republicans had cracked and packed Democrats in violation of the Equal Protection Clause. 478 U. S. 109, 116–117 (1986) (plurality opinion). A majority of the Court agreed that the case was justiciable, but the Court splintered over the proper standard to apply. Four Justices would have required proof of \"intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.\" Id., at 127. Two Justices would have focused on \"whether the boundaries of the voting districts have been distorted deliberately and arbitrarily to achieve illegitimate ends.\" Id., at 165 (Powell, J., concurring in part and dissenting in part). Three Justices, meanwhile, would have held that the Equal Protection Clause simply \"does not supply judicially manageable standards for resolving purely political gerrymandering claims.\" Id., at 147 (O’Connor, J., concurring in judgment). At the end of the day, there was \"no ‘Court’ for a standard that properly should be applied in determining whether a challenged redistricting plan is an unconstitutional partisan political gerrymander.\" Id., at 185, n. 25 (opinion of Powell, J.). In any event, the Court held that the plaintiffs had failed to show that the plan violated the Constitution. Eighteen years later, in Vieth, the plaintiffs complained that Pennsylvania’s legislature \"ignored all traditional redistricting criteria, including the preservation of local government boundaries,\" in order to benefit Republican congressional candidates. 541 U. S., at 272–273 (plurality opinion) (brackets omitted). Justice Scalia wrote for a four-Justice plurality. He would have held that the plaintiffs’ claims were nonjusticiable because there was no \"judicially discernible and manageable standard\" for deciding them. Id., at 306. Justice Kennedy, concurring in the judgment, noted \"the lack of comprehensive and neutral principles for drawing electoral boundaries [and] the absence of rules to limit and confine judicial intervention.\" Id., at 306–307. He nonetheless left open the possibility that \"in another case a standard might emerge.\" Id., at 312. Four Justices dissented. In LULAC, the plaintiffs challenged a mid-decade redistricting map approved by the Texas Legislature. Once again a majority of the Court could not find a justiciable standard for resolving the plaintiffs’ partisan gerrymandering claims. See 548 U. S., at 414 (noting that the \"disagreement over what substantive standard to apply\" that was evident in Bandemer \"persists\"). As we summed up last Term in Gill, our \"considerable efforts in Gaffney, Bandemer, Vieth, and LULAC leave unresolved whether . . . claims [of legal right] may be brought in cases involving allegations of partisan gerrymandering.\" 585 U. S., at ___ (slip op., at 13). Two \"threshold questions\" remained: standing, which we addressed in Gill, and \"whether [such] claims are justiciable.\" Ibid. III A In considering whether partisan gerrymandering claims are justiciable, we are mindful of Justice Kennedy’s counsel in Vieth: Any standard for resolving such claims must be grounded in a \"limited and precise rationale\" and be \"clear, manageable, and politically neutral.\" 541 U. S., at 306–308 (opinion concurring in judgment). An important reason for those careful constraints is that, as a Justice with extensive experience in state and local politics put it, \"[t]he opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States.\" Bandemer, 478 U. S., at 145 (opinion of O’Connor, J.). See Gaffney, 412 U. S., at 749 (observing that districting implicates \"fundamental ‘choices about the nature of representation’\" (quoting Burns v. Richardson, 384 U. S. 73, 92 (1966))). An expansive standard requiring \"the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process,\" Vieth, 541 U. S., at 306 (opinion of Kennedy, J.). As noted, the question is one of degree: How to \"provid[e] a standard for deciding how much partisan dominance is too much.\" LULAC, 548 U. S., at 420 (opinion of Kennedy, J.). And it is vital in such circumstances that the Court act only in accord with especially clear standards: \"With uncertain limits, intervening courts— even when proceeding with best intentions—would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.\" Vieth, 541 U. S., at 307 (opinion of Kennedy, J.). If federal courts are to \"inject [themselves] into the most heated partisan issues\" by adjudicating partisan gerrymandering claims, Bandemer, 478 U. S., at 145 (opinion of O’Connor, J.), they must be armed with a standard that can reliably differentiate unconstitutional from \"constitutional political gerrymandering.\" Cromartie, 526 U. S., at 551. B Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Explicitly or implicitly, a districting map is alleged to be unconstitutional because it makes it too difficult for one party to translate statewide support into seats in the legislature. But such a claim is based on a \"norm that does not exist\" in our electoral system—\"statewide elections for representatives along party lines.\" Bandemer, 478 U. S., at 159 (opinion of O’Connor, J.). Partisan gerrymandering claims invariably sound in a desire for proportional representation. As Justice O’Connor put it, such claims are based on \"a conviction that the greater the departure from proportionality, the more suspect an apportionment plan becomes.\" Ibid. \"Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.\" Id., at 130 (plurality opinion). See Mobile v. Bolden, 446 U. S. 55, 75–76 (1980) (plurality opinion) (\"The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organization.\"). The Founders certainly did not think proportional representation was required. For more than 50 years after ratification of the Constitution, many States elected their congressional representatives through at-large or \"general ticket\" elections. Such States typically sent single-party delegations to Congress. See E. Engstrom, Partisan Gerrymandering and the Construction of American Democracy 43–51 (2013). That meant that a party could garner nearly half of the vote statewide and wind up without any seats in the congressional delegation. The Whigs in Alabama suffered that fate in 1840: \"their party garnered 43 percent of the statewide vote, yet did not receive a single seat.\" Id., at 48. When Congress required single-member districts in the Apportionment Act of 1842, it was not out of a general sense of fairness, but instead a (mis)calculation by the Whigs that such a change would improve their electoral prospects. Id., at 43–44. Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve— based on the votes of their supporters—and to rearrange the challenged districts to achieve that end. But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so. As Justice Scalia put it for the plurality in Vieth: \"‘Fairness’ does not seem to us a judicially manageable standard. . . . Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decision-making.\" 541 U. S., at 291. The initial difficulty in settling on a \"clear, manageable and politically neutral\" test for fairness is that it is not even clear what fairness looks like in this context. There is a large measure of \"unfairness\" in any winner-take-all system. Fairness may mean a greater number of competitive districts. Such a claim seeks to undo packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But making as many districts as possible more competitive could be a recipe for disaster for the disadvantaged party. As Justice White has pointed out, \"[i]f all or most of the districts are competitive . . . even a narrow statewide preference for either party would produce an overwhelming majority for the winning party in the state legislature.\" Bandemer, 478 U. S., at 130 (plurality opinion). On the other hand, perhaps the ultimate objective of a \"fairer\" share of seats in the congressional delegation is most readily achieved by yielding to the gravitational pull of proportionality and engaging in cracking and packing, to ensure each party its \"appropriate\" share of \"safe\" seats. See id., at 130–131 (\"To draw district lines to maximize the representation of each major party would require creating as many safe seats for each party as the demographic and predicted political characteristics of the State would permit.\"); Gaffney, 412 U. S., at 735–738. Such an approach, however, comes at the expense of competitive districts and of individuals in districts allocated to the opposing party. Or perhaps fairness should be measured by adherence to \"traditional\" districting criteria, such as maintaining political subdivisions, keeping communities of interest together, and protecting incumbents. See Brief for Bipartisan Group of Current and Former Members of the House of Representatives as Amici Curiae; Brief for Professor Wesley Pegden et al. as Amici Curiae in No. 18–422. But protecting incumbents, for example, enshrines a particular partisan distribution. And the \"natural political geography\" of a State—such as the fact that urban electoral districts are often dominated by one political party—can itself lead to inherently packed districts. As Justice Kennedy has explained, traditional criteria such as compactness and contiguity \"cannot promise political neutrality when used as the basis for relief. Instead, it seems, a decision under these standards would unavoidably have significant political effect, whether intended or not.\" Vieth, 541 U. S., at 308–309 (opinion concurring in judgment). See id., at 298 (plurality opinion) (\"[P]acking and cracking, whether intentional or no, are quite consistent with adherence to compactness and respect for political subdivision lines\"). Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is \"fair\" in this context would be an \"unmoored determination\" of the sort characteristic of a political question beyond the competence of the federal courts. Zivotofsky v. Clinton, 566 U. S. 189, 196 (2012). And it is only after determining how to define fairness that you can even begin to answer the determinative question: \"How much is too much?\" At what point does permissible partisanship become unconstitutional? If compliance with traditional districting criteria is the fairness touchstone, for example, how much deviation from those criteria is constitutionally acceptable and how should map-drawers prioritize competing criteria? Should a court \"reverse gerrymander\" other parts of a State to counteract \"natural\" gerrymandering caused, for example, by the urban concentration of one party? If a districting plan protected half of the incumbents but redistricted the rest into head to head races, would that be constitutional? A court would have to rank the relative importance of those traditional criteria and weigh how much deviation from each to allow. If a court instead focused on the respective number of seats in the legislature, it would have to decide the ideal number of seats for each party and determine at what point deviation from that balance went too far. If a 5–3 allocation corresponds most closely to statewide vote totals, is a 6–2 allocation permissible, given that legislatures have the authority to engage in a certain degree of partisan gerrymandering? Which seats should be packed and which cracked? Or if the goal is as many competitive districts as possible, how close does the split need to be for the district to be considered competitive? Presumably not all districts could qualify, so how to choose? Even assuming the court knew which version of fairness to be looking for, there are no discernible and manageable standards for deciding whether there has been a violation. The questions are \"unguided and ill suited to the development of judicial standards,\" Vieth, 541 U. S., at 296 (plurality opinion), and \"results from one gerrymandering case to the next would likely be disparate and inconsistent,\" id., at 308 (opinion of Kennedy, J.). Appellees contend that if we can adjudicate one-person, one-vote claims, we can also assess partisan gerrymandering claims. But the one-person, one-vote rule is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims, because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly. It hardly follows from the principle that each person must have an equal say in the election of representatives that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support. More fundamentally, \"vote dilution\" in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. In other words, each representative must be accountable to (approximately) the same number of constituents. That requirement does not extend to political parties. It does not mean that each party must be influential in proportion to its number of supporters. As we stated unanimously in Gill, \"this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.\" 585 U. S., at ___ (slip op., at 21). See also Bandemer, 478 U. S., at 150 (opinion of O’Connor, J.) (\"[T]he Court has not accepted the argument that an ‘asserted entitlement to group representation’ . . . can be traced to the one person, one vote principle.\" (quoting Bolden, 446 U. S., at 77)).* Nor do our racial gerrymandering cases provide an appropriate standard for assessing partisan gerrymandering. \"[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country’s long and persistent history of racial discrimination in voting—as well as our Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for discrimination on the basis of race—would seem to compel the opposite conclusion.\" Shaw I, 509 U. S., at 650 (citation omitted). Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship. IV Appellees and the dissent propose a number of \"tests\" for evaluating partisan gerrymandering claims, but none meets the need for a limited and precise standard that is judicially discernible and manageable. And none provides a solid grounding for judges to take the extraordinary step of reallocating power and influence between political parties. A The Common Cause District Court concluded that all but one of the districts in North Carolina’s 2016 Plan violated the Equal Protection Clause by intentionally diluting the voting strength of Democrats. 318 F. Supp. 3d, at 923. In reaching that result the court first required the plaintiffs to prove \"that a legislative mapdrawer’s predominant purpose in drawing the lines of a particular district was to ‘subordinate adherents of one political party and entrench a rival party in power.’\" Id., at 865 (quoting Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___, ___ (2015) (slip op., at 1)). The District Court next required a showing \"that the dilution of the votes of supporters of a disfavored party in a particular district—by virtue of cracking or packing— is likely to persist in subsequent elections such that an elected representative from the favored party in the district will not feel a need to be responsive to constituents who support the disfavored party.\" 318 F. Supp. 3d, at 867. Finally, after a prima facie showing of partisan vote dilution, the District Court shifted the burden to the defendants to prove that the discriminatory effects are \"attributable to a legitimate state interest or other neutral explanation.\" Id., at 868. The District Court’s \"predominant intent\" prong is borrowed from the racial gerrymandering context. In racial gerrymandering cases, we rely on a \"predominant intent\" inquiry to determine whether race was, in fact, the reason particular district boundaries were drawn the way they were. If district lines were drawn for the purpose of separating racial groups, then they are subject to strict scrutiny because \"race-based decision-making is inherently suspect.\" Miller, 515 U. S., at 915. See Bush, 517 U. S., at 959 (principal opinion). But determining that lines were drawn on the basis of partisanship does not indicate that the districting was improper. A permissible intent— securing partisan advantage—does not become constitutionally impermissible, like racial discrimination, when that permissible intent \"predominates.\" The District Court tried to limit the reach of its test by requiring plaintiffs to show, in addition to predominant partisan intent, that vote dilution \"is likely to persist\" to such a degree that the elected representative will feel free to ignore the concerns of the supporters of the minority party. 318 F. Supp. 3d, at 867. But \"[t]o allow district courts to strike down apportionment plans on the basis of their prognostications as to the outcome of future elections . . . invites ‘findings’ on matters as to which neither judges nor anyone else can have any confidence.\" Bandemer, 478 U. S., at 160 (opinion of O’Connor, J.). See LULAC, 548 U. S., at 420 (opinion of Kennedy, J.) (\"[W]e are wary of adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs.\"). And the test adopted by the Common Cause court requires a far more nuanced prediction than simply who would prevail in future political contests. Judges must forecast with unspecified certainty whether a prospective winner will have a margin of victory sufficient to permit him to ignore the supporters of his defeated opponent (whoever that may turn out to be). Judges not only have to pick the winner—they have to beat the point spread. The appellees assure us that \"the persistence of a party’s advantage may be shown through sensitivity testing: probing how a plan would perform under other plausible electoral conditions.\" Brief for Appellees League of Women Voters of North Carolina et al. in No. 18–422, p. 55. See also 318 F. Supp. 3d, at 885. Experience proves that accurately predicting electoral outcomes is not so simple, either because the plans are based on flawed assumptions about voter preferences and behavior or because demographics and priorities change over time. In our two leading partisan gerrymandering cases themselves, the predictions of durability proved to be dramatically wrong. In 1981, Republicans controlled both houses of the Indiana Legislature as well as the governorship. Democrats challenged the state legislature districting map enacted by the Republicans. This Court in Bandemer rejected that challenge, and just months later the Democrats increased their share of House seats in the 1986 elections. Two years later the House was split 50–50 between Democrats and Republicans, and the Democrats took control of the chamber in 1990. Democrats also challenged the Pennsylvania congressional districting plan at issue in Vieth. Two years after that challenge failed, they gained four seats in the delegation, going from a 12–7 minority to an 11–8 majority. At the next election, they flipped another Republican seat. Even the most sophisticated districting maps cannot reliably account for some of the reasons voters prefer one candidate over another, or why their preferences may change. Voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations. Many voters split their tickets. Others never register with a political party, and vote for candidates from both major parties at different points during their lifetimes. For all of those reasons, asking judges to predict how a particular districting map will perform in future elections risks basing constitutional holdings on unstable ground outside judicial expertise. It is hard to see what the District Court’s third prong— providing the defendant an opportunity to show that the discriminatory effects were due to a \"legitimate redistricting objective\"—adds to the inquiry. 318 F. Supp. 3d, at 861. The first prong already requires the plaintiff to prove that partisan advantage predominates. Asking whether a legitimate purpose other than partisanship was the motivation for a particular districting map just restates the question. B The District Courts also found partisan gerrymandering claims justiciable under the First Amendment, coalescing around a basic three-part test: proof of intent to burden individuals based on their voting history or party affiliation; an actual burden on political speech or associational rights; and a causal link between the invidious intent and actual burden. See Common Cause, 318 F. Supp. 3d, at 929; Benisek, 348 F. Supp. 3d, at 522. Both District Courts concluded that the districting plans at issue violated the plaintiffs’ First Amendment right to association. The District Court in North Carolina relied on testimony that, after the 2016 Plan was put in place, the plaintiffs faced \"difficulty raising money, attracting candidates, and mobilizing voters to support the political causes and issues such Plaintiffs sought to advance.\" 318 F. Supp. 3d, at 932. Similarly, the District Court in Maryland examined testimony that \"revealed a lack of enthusiasm, indifference to voting, a sense of disenfranchisement, a sense of disconnection, and confusion,\" and concluded that Republicans in the Sixth District \"were burdened in fundraising, attracting volunteers, campaigning, and generating interest in voting.\" 348 F. Supp. 3d, at 523–524. To begin, there are no restrictions on speech, association, or any other First Amendment activities in the districting plans at issue. The plaintiffs are free to engage in those activities no matter what the effect of a plan may be on their district. The plaintiffs’ argument is that partisanship in districting should be regarded as simple discrimination against supporters of the opposing party on the basis of political viewpoint. Under that theory, any level of partisanship in districting would constitute an infringement of their First Amendment rights. But as the Court has explained, \"[i]t would be idle . . . to contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it.\" Gaffney, 412 U. S., at 752. The First Amendment test simply describes the act of districting for partisan advantage. It provides no standard for determining when partisan activity goes too far. As for actual burden, the slight anecdotal evidence found sufficient by the District Courts in these cases shows that this too is not a serious standard for separating constitutional from unconstitutional partisan gerrymandering. The District Courts relied on testimony about difficulty drumming up volunteers and enthusiasm. How much of a decline in voter engagement is enough to constitute a First Amendment burden? How many door knocks must go unanswered? How many petitions unsigned? How many calls for volunteers unheeded? The Common Cause District Court held that a partisan gerrymander places an unconstitutional burden on speech if it has more than a \"de minimis\" \"chilling effect or adverse impact\" on any First Amendment activity. 318 F. Supp. 3d, at 930. The court went on to rule that there would be an adverse effect \"even if the speech of [the plaintiffs] was not in fact chilled\"; it was enough that the districting plan \"makes it easier for supporters of Republican candidates to translate their votes into seats,\" thereby \"enhanc[ing] the[ir] relative voice.\" Id., at 933 (internal quotation marks omitted). These cases involve blatant examples of partisanship driving districting decisions. But the First Amendment analysis below offers no \"clear\" and \"manageable\" way of distinguishing permissible from impermissible partisan motivation. The Common Cause court embraced that conclusion, observing that \"a judicially manageable framework for evaluating partisan gerrymandering claims need not distinguish an ‘acceptable’ level of partisan gerrymandering from ‘excessive’ partisan gerrymandering\" because \"the Constitution does not authorize state redistricting bodies to engage in such partisan gerrymandering.\" Id., at 851. The decisions below prove the prediction of the Vieth plurality that \"a First Amendment claim, if it were sustained, would render unlawful all consideration of political affiliation in districting,\" 541 U. S., at 294, contrary to our established precedent. C The dissent proposes using a State’s own districting criteria as a neutral baseline from which to measure how extreme a partisan gerrymander is. The dissent would have us line up all the possible maps drawn using those criteria according to the partisan distribution they would produce. Distance from the \"median\" map would indicate whether a particular districting plan harms supporters of one party to an unconstitutional extent. Post, at 18–19, 25 (opinion of KAGAN, J.). As an initial matter, it does not make sense to use criteria that will vary from State to State and year to year as the baseline for determining whether a gerrymander violates the Federal Constitution. The degree of partisan advantage that the Constitution tolerates should not turn on criteria offered by the gerrymanderers themselves. It is easy to imagine how different criteria could move the median map toward different partisan distributions. As a result, the same map could be constitutional or not depending solely on what the mapmakers said they set out to do. That possibility illustrates that the dissent’s proposed constitutional test is indeterminate and arbitrary. Even if we were to accept the dissent’s proposed baseline, it would return us to \"the original unanswerable question (How much political motivation and effect is too much?).\" Vieth, 541 U. S., at 296–297 (plurality opinion). Would twenty percent away from the median map be okay? Forty percent? Sixty percent? Why or why not? (We appreciate that the dissent finds all the unanswerable questions annoying, see post, at 22, but it seems a useful way to make the point.) The dissent’s answer says it all: \"This much is too much.\" Post, at 25–26. That is not even trying to articulate a standard or rule. The dissent argues that there are other instances in law where matters of degree are left to the courts. See post, at 27. True enough. But those instances typically involve constitutional or statutory provisions or common law confining and guiding the exercise of judicial discretion. For example, the dissent cites the need to determine \"substantial anticompetitive effect[s]\" in antitrust law. Post, at 27 (citing Ohio v. American Express Co., 585 U. S. ___ (2018)). That language, however, grew out of the Sherman Act, understood from the beginning to have its \"origin in the common law\" and to be \"familiar in the law of this country prior to and at the time of the adoption of the [A]ct.\" Standard Oil Co. of N. J. v. United States, 221 U. S. 1, 51 (1911). Judges began with a significant body of law about what constituted a legal violation. In other cases, the pertinent statutory terms draw meaning from related provisions or statutory context. Here, on the other hand, the Constitution provides no basis whatever to guide the exercise of judicial discretion. Common experience gives content to terms such as \"substantial risk\" or \"substantial harm,\" but the same cannot be said of substantial deviation from a median map. There is no way to tell whether the prohibited deviation from that map should kick in at 25 percent or 75 percent or some other point. The only provision in the Constitution that specifically addresses the matter assigns it to the political branches. See Art. I, §4, cl. 1. D The North Carolina District Court further concluded that the 2016 Plan violated the Elections Clause and Article I, §2. We are unconvinced by that novel approach. Article I, §2, provides that \"[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States.\" The Elections Clause provides that \"[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.\" Art. I, §4, cl. 1. The District Court concluded that the 2016 Plan exceeded the North Carolina General Assembly’s Elections Clause authority because, among other reasons, \"the Elections Clause did not empower State legislatures to disfavor the interests of supporters of a particular candidate or party in drawing congressional districts.\" 318 F. Supp. 3d, at 937. The court further held that partisan gerrymandering infringes the right of \"the People\" to select their representatives. Id., at 938–940. Before the District Court’s decision, no court had reached a similar conclusion. In fact, the plurality in Vieth concluded—without objection from any other Justice—that neither §2 nor §4 of Article I \"provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.\" 541 U. S., at 305. The District Court nevertheless asserted that partisan gerrymanders violate \"the core principle of [our] republican government\" preserved in Art. I, §2, \"namely, that the voters should choose their representatives, not the other way around.\" 318 F. Supp. 3d, at 940 (quoting Arizona State Legislature, 576 U. S., at ___ (slip op., at 35); internal quotation marks omitted; alteration in original). That seems like an objection more properly grounded in the Guarantee Clause of Article IV, §4, which \"guarantee[s] to every State in [the] Union a Republican Form of Government.\" This Court has several times concluded, however, that the Guarantee Clause does not provide the basis for a justiciable claim. See, e.g., Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 (1912). V Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is \"incompatible with democratic principles,\" Arizona State Legislature, 576 U. S., at ___ (slip op., at 1), does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. \"[J]udicial action must be governed by standard, by rule,\" and must be \"principled, rational, and based upon reasoned distinctions\" found in the Constitution or laws. Vieth, 541 U. S., at 278, 279 (plurality opinion). Judicial review of partisan gerrymandering does not meet those basic requirements. Today the dissent essentially embraces the argument that the Court unanimously rejected in Gill: \"this Court can address the problem of partisan gerrymandering because it must.\" 585 U. S., at ___ (slip op., at 12). That is not the test of our authority under the Constitution; that document instead \"confines the federal courts to a properly judicial role.\" Town of Chester v. Laroe Estates, Inc., 581 U. S. ___, ___ (2017) (slip op., at 4). What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the past 45 years. The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration—it would recur over and over again around the country with each new round of districting, for state as well as federal representatives. Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role. See post, at 32–33. Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015). The dissent wonders why we can’t do the same. See post, at 31. The answer is that there is no \"Fair Districts Amendment\" to the Federal Constitution. Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply. (We do not understand how the dissent can maintain that a provision saying that no districting plan \"shall be drawn with the intent to favor or disfavor a political party\" provides little guidance on the question. See post, at 31, n. 6.) Indeed, numerous other States are restricting partisan considerations in districting through legislation. One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions. For example, in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. See Colo. Const., Art. V, §§44, 46; Mich. Const., Art. IV, §6. Missouri is trying a different tack. Voters there overwhelmingly approved the creation of a new position—state demographer—to draw state legislative district lines. Mo. Const., Art. III, §3. Other States have mandated at least some of the traditional districting criteria for their mapmakers. Some have outright prohibited partisan favoritism in redistricting. See Fla. Const., Art. III, §20(a) (\"No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent.\"); Mo. Const., Art. III, §3 (\"Districts shall be designed in a manner that achieves both partisan fairness and, secondarily, competitiveness. ‘Partisan fairness’ means that parties shall be able to translate their popular support into legislative representation with approximately equal efficiency.\"); Iowa Code §42.4(5) (2016) (\"No district shall be drawn for the purpose of favoring a political party, incumbent legislator or member of Congress, or other person or group.\"); Del. Code Ann., Tit. xxix, §804 (2017) (providing that in determining district boundaries for the state legislature, no district shall \"be created so as to unduly favor any person or political party\"). As noted, the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause. The first bill introduced in the 116th Congress would require States to create 15-member independent commissions to draw congressional districts and would establish certain redistricting criteria, including protection for communities of interest, and ban partisan gerrymandering. H. R. 1, 116th Cong., 1st Sess., §§2401, 2411 (2019). Dozens of other bills have been introduced to limit reliance on political considerations in redistricting. In 2010, H. R. 6250 would have required States to follow standards of compactness, contiguity, and respect for political subdivisions in redistricting. It also would have prohibited the establishment of congressional districts \"with the major purpose of diluting the voting strength of any person, or group, including any political party,\" except when necessary to comply with the Voting Rights Act of 1965. H. R. 6250, 111th Cong., 2d Sess., §2 (referred to committee). Another example is the Fairness and Independence in Redistricting Act, which was introduced in 2005 and has been reintroduced in every Congress since. That bill would require every State to establish an independent commission to adopt redistricting plans. The bill also set forth criteria for the independent commissions to use, such as compactness, contiguity, and population equality. It would prohibit consideration of voting history, political party affiliation, or incumbent Representative’s residence. H. R. 2642, 109th Cong., 1st Sess., §4 (referred to subcommittee). We express no view on any of these pending proposals. We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open. No one can accuse this Court of having a crabbed view of the reach of its competence. But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority. \"It is emphatically the province and duty of the judicial department to say what the law is.\" Marbury v. Madison, 1 Cranch, at 177. In this rare circumstance, that means our duty is to say \"this is not law.\" The judgments of the United States District Court for the Middle District of North Carolina and the United States District Court for the District of Maryland are vacated, and the cases are remanded with instructions to dismiss for lack of jurisdiction."},
{"docket_number": "17-1672", "syllabus": "Respondent Andre Haymond was convicted of possessing child pornography, a crime that carries a prison term of zero to 10 years. After serving a prison sentence of 38 months, and while on supervised release, Mr. Haymond was again found with what appeared to be child pornography. The government sought to revoke his supervised release and secure a new and additional prison sentence. A district judge, acting without a jury, found by a preponderance of the evidence that Mr. Haymond knowingly downloaded and possessed child pornography. Under 18 U. S. C. §3583(e)(3), the judge could have sentenced him to a prison term of between zero and two additional years. But because possession of child pornography is an enumerated offense under §3583(k), the judge instead imposed that provision’s 5- year mandatory minimum. On appeal, the Tenth Circuit observed that whereas a jury had convicted Mr. Haymond beyond a reasonable doubt of a crime carrying a prison term of zero to 10 years, this new prison term included a new and higher mandatory minimum resting on facts found only by a judge by a preponderance of the evidence. The Tenth Circuit therefore held that §3583(k) violated the right to trial by jury guaranteed by the Fifth and Sixth Amendments. Held: The judgment is vacated, and the case is remanded. 869 F. 3d 1153, vacated and remanded. JUSTICE GORSUCH, joined by JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, concluded that the application of §3583(k) in this case violated Mr. Haymond’s right to trial by jury. Pp. 5–22. (a) As at the time of the Fifth and Sixth Amendments’ adoption, a judge’s sentencing authority derives from, and is limited by, the jury’s factual findings of criminal conduct. A jury must find beyond a reasonable doubt every fact \" ‘which the law makes essential to [a] punishment’ \" that a judge might later seek to impose. Blakely v. Washington, 542 U. S. 296, 304. Historically, that rule’s application proved straightforward, but recent legislative innovations have raised difficult questions. In Apprendi v. New Jersey, 530 U. S. 466, for example, this Court held unconstitutional a sentencing scheme that allowed a judge to increase a defendant’s sentence beyond the statutory maximum based on the judge’s finding of new facts by a preponderance of the evidence. And in Alleyne v. United States, 570 U. S. 99, the Court held that Apprendi’s principle \"applies with equal force to facts increasing the mandatory minimum.\" 570 U. S., at 111–112. The lesson for this case is clear: Based solely on the facts reflected in the jury’s verdict, Mr. Haymond faced a lawful prison term of between zero and 10 years. But just like the facts the judge found at the defendant’s sentencing hearing in Alleyne, the facts the judge found here increased \"the legally prescribed range of allowable sentences\" in violation of the Fifth and Sixth Amendments. Id., at 115. Pp. 5–11. (b) The government’s various replies are unpersuasive. First, it stresses that Alleyne arose in a different procedural posture, but this Court has repeatedly rejected efforts to dodge the demands of the Fifth and Sixth Amendments by the simple expedient of relabeling a criminal prosecution. And this Court has already recognized that punishments for revocation of supervised release arise from and are \"treat[ed] . . . as part of the penalty for the initial offense.\" Johnson v. United States, 529 U. S. 694, 700. Because a defendant’s final sentence includes any revocation sentence he may receive, §3583(k)’s 5- year mandatory minimum mirrors the unconstitutional sentencing enhancement in Alleyne. Second, the government suggests that Mr. Haymond’s sentence for violating the terms of his supervised release was actually fully authorized by the jury’s verdict, because his supervised release was from the outset always subject to the possibility of judicial revocation and §3583(k)’s mandatory prison sentence. But what is true in Apprendi and Alleyne can be no less true here: A mandatory minimum 5-year sentence that comes into play only as a result of additional judicial factual findings by a preponderance of the evidence cannot stand. Finally, the government contends that §3583(k)’s supervised release revocation procedures are practically identical to historic parole and probation revocation procedures, which have usually been understood to comport with the Fifth and Sixth Amendments. That argument overlooks a critical difference between §3583(k) and traditional parole and probation practices. Where parole and probation violations traditionally exposed a defendant only to the remaining prison term authorized for his crime of conviction, §3583(k) exposes a defendant to an additional mandatory minimum prison term beyond that authorized by the jury’s verdict— all based on facts found by a judge by a mere preponderance of the evidence. Pp. 11–18. (c) The Tenth Circuit may address on remand the question whether its remedy—declaring the last two sentences of §3583(k) \"unconstitutional and unenforceable\"—sweeps too broadly, including any question concerning whether the government’s argument to that effect was adequately preserved. Pp. 22–23. JUSTICE BREYER agreed that the particular provision at issue, 18 U. S. C. §3583(k), is unconstitutional. Three features of §3583(k), considered together, make it less like ordinary supervised-release revocation and more like punishment for a new offense, to which the jury right would typically attach. First, §3583(k) applies only when a defendant commits a discrete set of criminal offenses specified in the statute. Second, §3583(k) takes away the judge’s discretion to decide whether violation of the conditions of supervised release should result in imprisonment and for how long. Third, §3583(k) limits the judge’s discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of \"not less than 5 years\" upon a judge’s finding that a defendant has committed a listed offense. But because the role of the judge in a typical supervised-release proceeding is consistent with traditional parole and because Congress clearly did not intend the supervised release system to differ from parole in this respect, JUSTICE BREYER would not transplant the Apprendi line of cases to the supervised-release context. Pp. 1–3.", "opinion": "Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty. That promise stands as one of the Constitution’s most vital protections against arbitrary government. Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt. As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments. I After a jury found Andre Haymond guilty of possessing child pornography in violation of federal law, the question turned to sentencing. The law authorized the district judge to impose a prison term of between zero and 10 years, 18 U. S. C. §2252(b)(2), and a period of supervised release of between 5 years and life, §3583(k). Because Mr. Haymond had no criminal history and was working to help support his mother who had suffered a stroke, the judge concluded that Mr. Haymond was \"not going to get much out of being in prison\" and sentenced him to a prison term of 38 months, followed by 10 years of supervised release. After completing his prison sentence, however, Mr. Haymond encountered trouble on supervised release. He sat for multiple polygraph tests in which he denied possessing or viewing child pornography, and each time the test indicated no deception. But when the government conducted an unannounced search of his computers and cellphone, it turned up 59 images that appeared to be child pornography. Based on that discovery, the government sought to revoke Mr. Haymond’s supervised release and secure a new and additional prison sentence. A hearing followed before a district judge acting without a jury, and under a preponderance of the evidence rather than a reasonable doubt standard. In light of expert testimony regarding the manner in which cellphones can \"cache\" images without the user’s knowledge, the judge found insufficient evidence to show that Mr. Haymond knowingly possessed 46 of the images. At the same time, the judge found it more likely than not that Mr. Haymond knowingly downloaded and possessed the remaining 13 images. With that, the question turned once more to sentencing. Under 18 U. S. C. §3583(e)(3), enacted as part of the Sentencing Reform Act of 1984, a district judge who finds that a defendant has violated the conditions of his supervised release normally may (but is not required to) impose a new prison term up to the maximum period of supervised release authorized by statute for the defendant’s original crime of conviction, subject to certain limits.1 Under that provision, the judge in this case would have been free to sentence Mr. Haymond to between zero and two additional years in prison. But there was a complication. Under §3583(k), added to the Act in 2003 and amended in 2006, if a judge finds by a preponderance of the evidence that a defendant on supervised release committed one of several enumerated offenses, including the possession of child pornography, the judge must impose an additional prison term of at least five years and up to life without regard to the length of the prison term authorized for the defendant’s initial crime of conviction.2 Because Mr. Haymond had committed an offense covered by §3583(k), the judge felt bound to impose an additional prison term of at least five years. He did so, though, with reservations. It’s one thing, Judge Terence Kern said, for a judge proceeding under a preponderance of the evidence standard to revoke a defendant’s supervised release and order him to serve additional time in prison within the range already authorized by the defendant’s original conviction; after all, the jury’s verdict, reached under the reasonable doubt standard, permitted that much punishment. But the judge found it \"‘repugnant’\" that a statute might impose a new and additional \"mandatory five-year\" punishment without those traditional protections. Were it not for §3583(k)’s mandatory minimum, the judge added, he \"probably would have sentenced in the range of two years or less.\" On appeal to the Tenth Circuit, Mr. Haymond challenged both the factual support for his new punishment and its constitutionality. On the facts, the court of appeals held that the district court’s findings against Mr. Haymond were clearly erroneous in certain respects. Even so, the court concluded, just enough evidence remained to sustain a finding that Mr. Haymond had knowingly possessed the 13 images at issue, in violation of §3583(k). That left the question of the statute’s constitutionality, and there the Tenth Circuit concluded that §3583(k) violated the Fifth and Sixth Amendments. The court explained that a jury had convicted Mr. Haymond beyond a reasonable doubt of a crime carrying a prison term of zero to 10 years. Yet now Mr. Haymond faced a new potential prison term of five years to life. Because this new prison term included a new and higher mandatory minimum resting only on facts found by a judge by a preponderance of the evidence, the court held, the statute violated Mr. Haymond’s right to trial by jury. By way of remedy, the court held the last two sentences of §3583(k), which mandate a 5-year minimum prison term, \"unconstitutional and unenforceable.\" 869 F. 3d 1153, 1168 (2017). The court then vacated Mr. Haymond’s revocation sentence and remanded the case to the district court for resentencing without regard to those provisions. In effect, the court of appeals left the district court free to issue a new sentence under the preexisting statute governing most every other supervised release violation, §3583(e). Following the Tenth Circuit’s directions, the district court proceeded to resentence Mr. Haymond to time served, as he had already been detained by that point for approximately 28 months. We granted review to consider the Tenth Circuit’s constitutional holding. 586 U. S. ___ (2018). II Together with the right to vote, those who wrote our Constitution considered the right to trial by jury \"the heart and lungs, the mainspring and the center wheel\" of our liberties, without which \"the body must die; the watch must run down; the government must become arbitrary.\" Letter from Clarendon to W. Pym (Jan. 27, 1766), in 1 Papers of John Adams 169 (R. Taylor ed. 1977). Just as the right to vote sought to preserve the people’s authority over their government’s executive and legislative functions, the right to a jury trial sought to preserve the people’s authority over its judicial functions. J. Adams, Diary Entry (Feb. 12, 1771), in 2 Diary and Autobiography of John Adams 3 (L. Butterfield ed. 1961); see also 2 J. Story, Commentaries on the Constitution §1779, pp. 540–541 (4th ed. 1873). Toward that end, the Framers adopted the Sixth Amendment’s promise that \"[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury.\" In the Fifth Amendment, they added that no one may be deprived of liberty without \"due process of law.\" Together, these pillars of the Bill of Rights ensure that the government must prove to a jury every criminal charge beyond a reasonable doubt, an ancient rule that has \"extend[ed] down centuries.\" Apprendi v. New Jersey, 530 U. S. 466, 477 (2000). But when does a \"criminal prosecution\" arise implicating the right to trial by jury beyond a reasonable doubt? At the founding, a \"prosecution\" of an individual simply referred to \"the manner of [his] formal accusation.\" 4 W. Blackstone, Commentaries on the Laws of England 298 (1769) (Blackstone); see also N. Webster, An American Dictionary of the English Language (1st ed. 1828) (defining \"prosecution\" as \"the process of exhibiting formal charges against an offender before a legal tribunal\"). And the concept of a \"crime\" was a broad one linked to punishment, amounting to those \"acts to which the law affixes . . . punishment,\" or, stated differently, those \"element[s] in the wrong upon which the punishment is based.\" 1 J. Bishop, Criminal Procedure §§80, 84, pp. 51–53 (2d ed. 1872) (Bishop); see also J. Archbold, Pleading and Evidence in Criminal Cases *106 (5th Am. ed. 1846) (Archbold) (discussing a crime as including any fact that \"annexes a higher degree of punishment\"); Blakely v. Washington, 542 U. S. 296, 309 (2004); Apprendi, 530 U. S., at 481. Consistent with these understandings, juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish. A judge’s authority to issue a sentence derives from, and is limited by, the jury’s factual findings of criminal conduct. In the early Republic, if an indictment or \"accusation . . . lack[ed] any particular fact which the laws ma[d]e essential to the punishment,\" it was treated as \"no accusation\" at all. 1 Bishop §87, at 55; see also 2 M. Hale, Pleas of the Crown *170 (1736); Archbold *106. And the \"truth of every accusation\" that was brought against a person had to \"be confirmed by the unanimous suffrage of twelve of his equals and neighbours.\" 4 Blackstone 343. Because the Constitution’s guarantees cannot mean less today than they did the day they were adopted, it remains the case today that a jury must find beyond a reasonable doubt every fact \"‘which the law makes essential to [a] punishment’\" that a judge might later seek to impose. Blakely, 542 U. S., at 304 (quoting 1 Bishop §87, at 55). For much of our history, the application of this rule of jury supervision proved pretty straightforward. At common law, crimes tended to carry with them specific sanctions, and \"once the facts of the offense were determined by the jury, the judge was meant simply to impose the prescribed sentence.\" Alleyne v. United States, 570 U. S. 99, 108 (2013) (plurality opinion) (internal quotation marks and brackets omitted). Even when judges did enjoy discretion to adjust a sentence based on judge-found aggravating or mitigating facts, they could not \"‘swell the penalty above what the law ha[d] provided for the acts charged’\" and found by the jury. Apprendi, 530 U. S., at 519 (THOMAS, J., concurring) (quoting 1 Bishop §85, at 54); see also 1 J. Bishop, Criminal Law §§933–934(1), p. 690 (9th ed. 1923) (\"[T]he court determines in each case what within the limits of the law shall be the punishment\" (emphasis added)). In time, of course, legislatures adopted new laws allowing judges or parole boards to suspend part (parole) or all (probation) of a defendant’s prescribed prison term and afford him a period of conditional liberty as an \"act of grace,\" subject to revocation. Escoe v. Zerbst, 295 U. S. 490, 492 (1935); see Anderson v. Corall, 263 U. S. 193, 196–197 (1923). But here, too, the prison sentence a judge or parole board could impose for a parole or probation violation normally could not exceed the remaining balance of the term of imprisonment already authorized by the jury’s verdict. So even these developments did not usually implicate the historic concerns of the Fifth and Sixth Amendments. See Blakely, 542 U. S., at 309; Apprendi, 530 U. S., at 498 (Scalia, J., concurring); 4 Atty. Gen.’s Survey of Release Proc. 22 (1939); 2 id., at 333. More recent legislative innovations have raised harder questions. In Apprendi, for example, a jury convicted the defendant of a gun crime that carried a maximum prison sentence of 10 years. But then a judge sought to impose a longer sentence pursuant to a statute that authorized him to do so if he found, by a preponderance of the evidence, that the defendant had committed the crime with racial bias. Apprendi held this scheme unconstitutional. \"[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum,\" this Court explained, \"must be submitted to a jury, and proved beyond a reasonable doubt\" or admitted by the defendant. 530 U. S., at 490. Nor may a State evade this traditional restraint on the judicial power by simply calling the process of finding new facts and imposing a new punishment a judicial \"sentencing enhancement.\" Id., at 495. \"[T]he relevant inquiry is one not of form, but of effect—does the required [judicial] finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?\" Id., at 494. While \"trial practices ca[n] change in the course of centuries and still remain true to the principles that emerged from the Framers’\" design, id., at 483, in the years since Apprendi this Court has not hesitated to strike down other innovations that fail to respect the jury’s supervisory function. See, e.g., Ring v. Arizona, 536 U. S. 584 (2002) (imposition of death penalty based on judicial factfinding); Blakely, 542 U. S., at 303 (mandatory state sentencing guidelines); Cunningham v. California, 549 U. S. 270 (2007) (same); United States v. Booker, 543 U. S. 220 (2005) (mandatory federal sentencing guidelines); Southern Union Co. v. United States, 567 U. S. 343 (2012) (imposition of criminal fines based on judicial factfinding).3 Still, these decisions left an important gap. In Apprendi, this Court recognized that \"‘[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties.’\" 530 U. S., at 490. But by definition, a range of punishments includes not only a maximum but a minimum. And logically it would seem to follow that any facts necessary to increase a person’s minimum punishment (the \"floor\") should be found by the jury no less than facts necessary to increase his maximum punishment (the \"ceiling\"). Before Apprendi, however, this Court had held that facts elevating the minimum punishment need not be proven to a jury beyond a reasonable doubt. McMillan v. Pennsylvania, 477 U. S. 79 (1986); see also Harris v. United States, 536 U. S. 545 (2002) (adhering to McMillan). Eventually, the Court confronted this anomaly in Alleyne. There, a jury convicted the defendant of a crime that ordinarily carried a sentence of five years to life in prison. But a separate statutory \"sentencing enhancement\" increased the mandatory minimum to seven years if the defendant \"brandished\" the gun. At sentencing, a judge found by a preponderance of the evidence that the defendant had indeed brandished a gun and imposed the mandatory minimum 7-year prison term. This Court reversed. Finding no basis in the original understanding of the Fifth and Sixth Amendments for McMillan and Harris, the Court expressly overruled those decisions and held that \"the principle applied in Apprendi applies with equal force to facts increasing the mandatory minimum\" as it does to facts increasing the statutory maximum penalty. Alleyne, 570 U. S., at 112. Nor did it matter to Alleyne’s analysis that, even without the mandatory minimum, the trial judge would have been free to impose a 7-year sentence because it fell within the statutory sentencing range authorized by the jury’s findings. Both the \"floor\" and \"ceiling\" of a sentencing range \"define the legally prescribed penalty.\" Ibid. And under our Constitution, when \"a finding of fact alters the legally prescribed punishment so as to aggravate it\" that finding must be made by a jury of the defendant’s peers beyond a reasonable doubt. Id., at 114. Along the way, the Court observed that there can be little doubt that \"[e]levating the low end of a sentencing range heightens the loss of liberty associated with the crime: The defendant’s expected punishment has increased as a result of the narrowed range and the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish.\" Id., at 113 (internal quotation marks omitted). By now, the lesson for our case is clear. Based on the facts reflected in the jury’s verdict, Mr. Haymond faced a lawful prison term of between zero and 10 years under §2252(b)(2). But then a judge—acting without a jury and based only on a preponderance of the evidence—found that Mr. Haymond had engaged in additional conduct in violation of the terms of his supervised release. Under §3583(k), that judicial factfinding triggered a new punishment in the form of a prison term of at least five years and up to life. So just like the facts the judge found at the defendant’s sentencing hearing in Alleyne, the facts the judge found here increased \"the legally prescribed range of allowable sentences\" in violation of the Fifth and Sixth Amendments. Id., at 115. In this case, that meant Mr. Haymond faced a minimum of five years in prison instead of as little as none. Nor did the absence of a jury’s finding beyond a reasonable doubt only infringe the rights of the accused; it also divested the \"‘people at large’\"—the men and women who make up a jury of a defendant’s peers—of their constitutional authority to set the metes and bounds of judicially administered criminal punishments. Blakely, 542 U. S., at 306 (quoting Letter XV by the Federal Farmer (Jan. 18, 1788), in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed. 1981)).4 III In reply, the government and the dissent offer many and sometimes competing arguments, but we find none persuasive. A The government begins by pointing out that Alleyne arose in a different procedural posture. There, the trial judge applied a \"sentencing enhancement\" based on his own factual findings at the defendant’s initial sentencing hearing; meanwhile, Mr. Haymond received his new punishment from a judge at a hearing to consider the revocation of his term of supervised release. This procedural distinction makes all the difference, we are told, because the Sixth Amendment’s jury trial promise applies only to \"criminal prosecutions,\" which end with the issuance of a sentence and do not extend to \"post-judgment sentence-administration proceedings.\" Brief for United States 24; see also post, at 13–17 (ALITO, J., dissenting) (echoing this argument). But we have been down this road before. Our precedents, Apprendi, Blakely, and Alleyne included, have repeatedly rejected efforts to dodge the demands of the Fifth and Sixth Amendments by the simple expedient of relabeling a criminal prosecution a \"sentencing enhancement.\" Calling part of a criminal prosecution a \"sentence modification\" imposed at a \"post-judgment sentence-administration proceeding\" can fare no better. As this Court has repeatedly explained, any \"increase in a defendant’s authorized punishment contingent on the finding of a fact\" requires a jury and proof beyond a reasonable doubt \"no matter\" what the government chooses to call the exercise. Ring, 536 U. S., at 602. To be sure, and as the government and dissent emphasize, founding-era prosecutions traditionally ended at final judgment. But at that time, generally, \"questions of guilt and punishment both were resolved in a single proceeding\" subject to the Fifth and Sixth Amendment’s demands. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967, 2011 (2005); see also supra, at 7. Over time, procedures changed as legislatures sometimes bifurcated criminal prosecutions into separate trial and penalty phases. But none of these developments licensed judges to sentence individuals to punishments beyond the legal limits fixed by the facts found in the jury’s verdict. See ibid. To the contrary, we recognized in Apprendi and Alleyne, a \"criminal prosecution\" continues and the defendant remains an \"accused\" with all the rights provided by the Sixth Amendment, until a final sentence is imposed. See Apprendi, 530 U. S., at 481–482. Today, we merely acknowledge that an accused’s final sentence includes any supervised release sentence he may receive. Nor in saying that do we say anything new: This Court has already recognized that supervised release punishments arise from and are \"treat[ed] . . . as part of the penalty for the initial offense.\" Johnson v. United States, 529 U. S. 694, 700 (2000). The defendant receives a term of supervised release thanks to his initial offense, and whether that release is later revoked or sustained, it constitutes a part of the final sentence for his crime. As at the initial sentencing hearing, that does not mean a jury must find every fact in a revocation hearing that may affect the judge’s exercise of discretion within the range of punishments authorized by the jury’s verdict. But it does mean that a jury must find any facts that trigger a new mandatory minimum prison term.5 This logic respects not only our precedents, but the original meaning of the jury trial right they seek to protect. The Constitution seeks to safeguard the people’s control over the business of judicial punishments by ensuring that any accusation triggering a new and additional punishment is proven to the satisfaction of a jury beyond a reasonable doubt. By contrast, the view the government and dissent espouse would demote the jury from its historic role as \"circuit-breaker in the State’s machinery of justice,\" Blakely, 542 U. S., at 306, to \"‘low-level gatekeeping,’\" Booker, 543 U. S., at 230. If the government and dissent were correct, Congress could require anyone convicted of even a modest crime to serve a sentence of supervised release for the rest of his life. At that point, a judge could try and convict him of any violation of the terms of his release under a preponderance of the evidence standard, and then sentence him to pretty much anything. At oral argument, the government even conceded that, under its theory, a defendant on supervised release would have no Sixth Amendment right to a jury trial when charged with an infraction carrying the death penalty. We continue to doubt whether even Apprendi’s fiercest critics \"would advocate\" such an \"absurd result.\" Blakely, 542 U. S., at 306.6 B Where it previously suggested that Mr. Haymond’s supervised release revocation proceeding was entirely divorced from his criminal prosecution, the government next turns around and suggests that Mr. Haymond’s sentence for violating the terms of his supervised release was actually fully authorized by the jury’s verdict. See also post, at 7–8 (ALITO, J., dissenting) (proposing a similar theory). After all, the government observes, on the strength of the jury’s findings the judge was entitled to impose as punishment a term of supervised release; and, in turn, that term of supervised release was from the outset always subject to the possibility of judicial revocation and §3583(k)’s mandatory prison sentence. Presto: Sixth Amendment problem solved. But we have been down this road too. In Apprendi and Alleyne, the jury’s verdict triggered a statute that authorized a judge at sentencing to increase the defendant’s term of imprisonment based on judge-found facts. This Court had no difficulty rejecting that scheme as an impermissible evasion of the historic rule that a jury must find all of the facts necessary to authorize a judicial punishment. See Alleyne, 570 U. S., at 117; Apprendi, 530 U. S., at 483. And what was true there can be no less true here: A mandatory minimum 5-year sentence that comes into play only as a result of additional judicial factual findings by a preponderance of the evidence cannot stand. This Court’s observation that \"post-revocation sanctions\" are \"treat[ed] . . . as part of the penalty for the initial offense,\" Johnson, 529 U. S., at 700, only highlights the constitutional infirmity of §3583(k): Treating Mr. Haymond’s 5-year mandatory minimum prison term as part of his sentence for his original offense makes clear that it mirrors the unconstitutional sentencing enhancement in Alleyne. See supra, at 12–13. Notice, too, that following the government down this road would lead to the same destination as the last: If the government were right, a jury’s conviction on one crime would (again) permit perpetual supervised release and allow the government to evade the need for another jury trial on any other offense the defendant might commit, no matter how grave the punishment. And if there’s any doubt about the incentives such a rule would create, consider this case. Instead of seeking a revocation of supervised release, the government could have chosen to prosecute Mr. Haymond under a statute mandating a term of imprisonment of 10 to 20 years for repeat child-pornography offenders. 18 U. S. C. §2252(b)(2). But why bother with an old-fashioned jury trial for a new crime when a quick-and-easy \"supervised release revocation hearing\" before a judge carries a penalty of five years to life? This displacement of the jury’s traditional supervisory role, under cover of a welter of new labels, exemplifies the \"Framers’ fears that the jury right could be lost not only by gross denial, but by erosion.\" Apprendi, 530 U. S., at 483 (internal quotation marks omitted). C Pivoting once more, the government and the dissent seem to accept for argument’s sake that \"post-judgment sentence-administration proceedings\" can implicate the Fifth and Sixth Amendments. See post, at 6–11. But, they contend, §3583(k)’s supervised release revocation procedures are practically identical to historic parole and probation revocation procedures. See, e.g., Gagnon v. Scarpelli, 411 U. S. 778 (1973); Morrissey v. Brewer, 408 U. S. 471 (1972). And, because those other procedures have usually been understood to comport with the Fifth and Sixth Amendments, they submit, §3583(k)’s procedures must do so as well. But this argument, too, rests on a faulty premise, overlooking a critical difference between §3583(k) and traditional parole and probation practices. Before the Sentencing Reform Act of 1984, a federal criminal defendant could serve as little as a third of his assigned prison term before becoming eligible for release on parole. See 18 U. S. C. §4205(a) (1982 ed.). Or he might avoid prison altogether in favor of probation. See §3561 (1982 ed.). If the defendant violated the terms of his parole or probation, a judge could send him to prison. But either way and as we’ve seen, a judge generally could sentence the defendant to serve only the remaining prison term authorized by statute for his original crime of conviction. See supra, at 7; Morrissey, 408 U. S., at 477 (\"The essence of parole is release from prison, before the completion of sentence\" (emphasis added)). Thus, a judge could not imprison a defendant for any longer than the jury’s factual findings allowed—a result entirely harmonious with the Fifth and Sixth Amendments. See Apprendi, 530 U. S., at 498 (Scalia, J., concurring); Blakely, 542 U. S., at 309. All that changed beginning in 1984. That year, Congress overhauled federal sentencing procedures to make prison terms more determinate and abolish the practice of parole. Now, when a defendant is sentenced to prison he generally must serve the great bulk of his assigned term. In parole’s place, Congress established the system of supervised release. But \"[u]nlike parole,\" supervised release wasn’t introduced to replace a portion of the defendant’s prison term, only to encourage rehabilitation after the completion of his prison term. United States Sentencing Commission, Guidelines Manual ch. 7, pt. A(2)(b) (Nov. 2012); see Doherty, Indeterminate Sentencing Returns: The Invention of Supervised Release, 88 N. Y. U. L. Rev. 958, 1024 (2013). In this case, that structural difference bears constitutional consequences. Where parole and probation violations generally exposed a defendant only to the remaining prison term authorized for his crime of conviction, as found by a unanimous jury under the reasonable doubt standard, supervised release violations subject to §3583(k) can, at least as applied in cases like ours, expose a defendant to an additional mandatory minimum prison term well beyond that authorized by the jury’s verdict—all based on facts found by a judge by a mere preponderance of the evidence. In fact, §3583(k) differs in this critical respect not only from parole and probation; it also represents a break from the supervised release practices that Congress authorized in §3583(e)(3) and that govern most federal criminal proceedings today. Unlike all those procedures, §3583(k) alone requires a substantial increase in the minimum sentence to which a defendant may be exposed based only on judge-found facts under a preponderance standard. And, as we explained in Alleyne and reaffirm today, that offends the Fifth and Sixth Amendments’ ancient protections.7 D The dissent suggests an analogy between revocation under §3583(k) and prison disciplinary procedures that do not normally require the involvement of a jury. Post, at 19–20. But the analogy is a strained one: While the Sixth Amendment surely does not require a jury to find every fact that the government relies on to adjust the terms of a prisoner’s confinement (say, by reducing some of his privileges as a sanction for violating the prison rules), that does not mean the government can send a free man back to prison for years based on judge-found facts. Again, practice in the early Republic confirms this. At that time, a term of imprisonment may have been understood as encompassing a degree of summary discipline for alleged infractions of prison regulations without the involvement of a jury. See F. Gray, Prison Discipline in America 22–23, 48–49 (1848). But that does not mean any sanction, no matter how serious, would have been considered part and parcel of the original punishment. On the contrary, the few courts that grappled with this issue seem to have recognized that \"infamous\" punishments, such as a substantial additional term in prison, might implicate the right to trial by jury. See, e.g., Gross v. Rice, 71 Me. 241, 246–252 (1880); In re Edwards, 43 N. J. L. 555, 557–558 (1881). What’s more, a tradition of summary process in prison, where administrators face the \"formidable task\" of controlling a large group of potentially unruly prisoners, does not necessarily support the use of such summary process outside the prison walls. O’Lone v. Estate of Shabazz, 482 U. S. 342, 353 (1987); cf. Morrissey, 408 U. S., at 482. We have long held that prison regulations that impinge on the constitutional rights inmates would enjoy outside of prison must be \"reasonably related to legitimate penological interests\" in managing the prison. Turner v. Safley, 482 U. S. 78, 89 (1987). That approach, we have said, ensures that corrections officials can \"‘anticipate security problems’\" and address \"‘the intractable problems of prison administration.’\" O’Lone, 482 U. S., at 349; see also Dahne v. Richey, 587 U. S. ___, ___ (2019) (ALITO, J., dissenting from denial of certiorari) (slip op., at 2) (\"To maintain order, prison authorities may insist on compliance with rules that would not be permitted in the outside world\"). Whether or not the Turner test applies to prisoners’ jury trial rights, we certainly have never extended it to the jury rights of persons out in the world who retain the core attributes of liberty. Cf. Griffin v. Wisconsin, 483 U. S. 868, 874, n. 2 (1987) (reserving question whether Turner applies to probation). Even the government has not asked us to do so today.8 E Finally, much of the dissent is consumed by what it calls the \"potentially revolutionary\" consequences of our opinion. Post, at 1; see also post, at 15, 25 (calling our opinion \"inexcusable,\" \"unpardonabl[e],\" and \"dangerous\"); post, at 4 (our opinion threatens to bring \"the whole concept of supervised release . . . crashing down\"); post, at 9 (under our opinion, \"the whole system of supervised release would be like a 40–ton truck speeding down a steep mountain road with no brakes\"). But what agitates the dissent so much is an issue not presented here: whether all supervised release proceedings comport with Apprendi. As we have emphasized, our decision is limited to §3583(k)—an unusual provision enacted little more than a decade ago— and the Alleyne problem raised by its 5-year mandatory minimum term of imprisonment. See n. 7, supra. Section §3583(e), which governs supervised release revocation proceedings generally, does not contain any similar mandatory minimum triggered by judge-found facts. Besides, even if our opinion could be read to cast doubts on §3583(e) and its consistency with Apprendi, the practical consequences of a holding to that effect would not come close to fulfilling the dissent’s apocalyptic prophecy. In most cases (including this one), combining a defendant’s initial and post-revocation sentences issued under §3583(e) will not yield a term of imprisonment that exceeds the statutory maximum term of imprisonment the jury has authorized for the original crime of conviction. That’s because \"courts rarely sentence defendants to the statutory maxima,\" United States v. Caso, 723 F. 3d 215, 224–225 (CADC 2013) (citing Sentencing Commission data indicating that only about 1% of defendants receive the maximum), and revocation penalties under §3583(e)(3) are only a small fraction of those available under §3583(k). So even if §3583(e)(3) turns out to raise Sixth Amendment issues in a small set of cases, it hardly follows that \"as a practical matter supervised-release revocation proceedings cannot be held\" or that \"the whole idea of supervised release must fall.\" Post, at 4–5. Indeed, the vast majority of supervised release revocation proceedings under subsection (e)(3) would likely be unaffected. In the end, the dissent is left only to echo an age-old criticism: Jury trials are inconvenient for the government. Yet like much else in our Constitution, the jury system isn’t designed to promote efficiency but to protect liberty. In what now seems a prescient passage, Blackstone warned that the true threat to trial by jury would come less from \"open attacks,\" which \"none will be so hardy as to make,\" as from subtle \"machinations, which may sap and undermine i[t] by introducing new and arbitrary methods.\" 4 Blackstone 343. This Court has repeatedly sought to guard the historic role of the jury against such incursions. For \"however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters.\" Id., at 344.9 IV Having concluded that the application of §3583(k)’s mandatory minimum in this case violated Mr. Haymond’s right to trial by jury, we face the question of remedy. Recall that the Tenth Circuit declared the last two sentences of §3583(k) \"unconstitutional and unenforceable.\" Those two sentences provide in relevant part that \"[i]f a defendant required to register under [SORNA]\" commits certain specified offenses, \"the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment [of] not . . . less than 5 years.\" Before us, the government suggests that the Tenth Circuit erred in declaring those two sentences \"unenforceable.\" That remedy, the government says, sweeps too broadly. In the government’s view, any constitutional infirmity can be cured simply by requiring juries acting under the reasonable doubt standard, rather than judges proceeding under the preponderance of the evidence standard, to find the facts necessary to trigger §3583(k)’s mandatory minimum. This remedy would be consistent with the statute’s terms, the government assures us, because \"the court\" authorized to revoke a term of supervised release in §3583(k) can and should be construed as embracing not only judges but also juries. And, the government insists, that means we should direct the court of appeals to send this case back to the district court so a jury may be empaneled to decide whether Mr. Haymond violated §3583(k). Unsurprisingly, Mr. Haymond contests all of this vigorously. We decline to tangle with the parties’ competing remedial arguments today. The Tenth Circuit did not address these arguments; it appears the government did not even discuss the possibility of empaneling a jury in its brief to that court; and this Court normally proceeds as a \"court of review, not of first view,\" Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Given all this, we believe the wiser course lies in returning the case to the court of appeals for it to have the opportunity to address the government’s remedial argument in the first instance, including any question concerning whether that argument was adequately preserved in this case. The judgment of the court of appeals is vacated, and the case is remanded for further proceedings."},
{"docket_number": "18-281", "syllabus": "After the 2010 census, Virginia redrew legislative districts for the State’s Senate and House of Delegates. Voters in 12 impacted House districts sued two state agencies and four election officials (collectively, State Defendants), charging that the redrawn districts were racially gerrymandered in violation of the Fourteenth Amendment’s Equal Protection Clause. The House of Delegates and its Speaker (collectively, the House) intervened as defendants, participating in the bench trial, on appeal to this Court, and at a second bench trial, where a three-judge District Court held that 11 of the districts were unconstitutionally drawn, enjoined Virginia from conducting elections for those districts before adoption of a new plan, and gave the General Assembly several months to adopt that plan. Virginia’s Attorney General announced that the State would not pursue an appeal to this Court. The House, however, did file an appeal. Held: The House lacks standing, either to represent the State’s interests or in its own right. Pp. 3–12. (a) To cross the standing threshold, a litigant must show (1) a concrete and particularized injury, that (2) is fairly traceable to the challenged conduct, and (3) is likely to be redressed by a favorable decision. Hollingsworth v. Perry, 570 U. S. 693, 704. Standing must be met at every stage of the litigation, including on appeal. Arizonans for Official English v. Arizona, 520 U. S. 43, 64. And as a jurisdictional requirement, standing cannot be waived or forfeited. To appeal a decision that the primary party does not challenge, an intervenor must independently demonstrate standing. Wittman v. Personhuballah, 578 U. S. ___, ___. Pp. 3–4. (b) The House lacks standing to represent the State’s interests. The State itself had standing to press this appeal, see Diamond v. Charles, 476 U. S. 54, 62, and could have designated agents to do so, Hollingsworth, 570 U. S., at 710. However, the State did not designate the House to represent its interests here. Under Virginia law, authority and responsibility for representing the State’s interests in civil litigation rest exclusively with the State’s Attorney General. Virginia state courts permitted the House to intervene to defend legislation in Vesilind v. Virginia State Bd. of Elections, 295 Va. 427, 813 S. E. 2d 739, but the House’s participation in Vesilind occurred in the same defensive posture as did the House’s participation in earlier phases of this case, when the House did not need to establish standing. Moreover, the House pointed to nothing in the Vesilind litigation suggesting that the Virginia courts understood the House to be representing the interests of the State itself. Karcher v. May, 484 U. S. 72, distinguished. Throughout this litigation, the House has purported to represent only its own interests. The House thus lacks authority to displace Virginia’s Attorney General as the State’s representative. Pp. 4–7. (c) The House also lacks standing to pursue this appeal in its own right. This Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage. Virginia’s Constitution allocates redistricting authority to the \"General Assembly,\" of which the House constitutes only a part. That fact distinguishes this case from Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___, where Arizona’s House and Senate—acting together—had standing to challenge the constitutionality of a referendum that gave redistricting authority exclusively to an independent commission. The Arizona referendum was also assailed on the ground that it permanently deprived the legislative plaintiffs of their role in the redistricting process, while the order challenged here does not alter the General Assembly’s dominant initiating and ongoing redistricting role. Coleman v. Miller, 307 U. S. 433, also does not aid the House here, where the issue is the constitutionality of a concededly enacted redistricting plan, not the results of a legislative chamber’s poll or the validity of any counted or uncounted vote. Redrawing district lines indeed may affect the chamber’s membership, but the House as an institution has no cognizable interest in the identity of its members. The House has no prerogative to select its own members. It is a representative body composed of members chosen by the people. Changes in its membership brought about by the voting public thus inflict no cognizable injury on the House. Sixty-seventh Minnesota State Senate v. Beens, 406 U. S. 187, distinguished. Nor does a court order causing legislators to seek reelection in districts different from those they currently represent affect the House’s representational nature. Legislative districts change frequently, and the Virginia Constitution guards against representational confusion by providing that delegates continue to represent the districts that elected them, even if their reelection campaigns will be waged in different districts. In short, the State of Virginia would rather stop than fight on. One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process. Pp. 7–12.", "opinion": "The Court resolves in this opinion a question of standing to appeal. In 2011, after the 2010 census, Virginia redrew legislative districts for the State’s Senate and House of Delegates. Voters in 12 of the impacted House districts sued two Virginia state agencies and four election officials (collectively, State Defendants) charging that the redrawn districts were racially gerrymandered in violation of the Fourteenth Amendment’s Equal Protection Clause. The Virginia House of Delegates and its Speaker (collectively, the House) intervened as defendants and carried the laboring oar in urging the constitutionality of the challenged districts at a bench trial, see Bethune-Hill v. Virginia State Bd. of Elections, 141 F. Supp. 3d 505 (ED Va. 2015), on appeal to this Court, see Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___ (2017), and at a second bench trial. In June 2018, after the second bench trial, a three-judge District Court in the Eastern District of Virginia, dividing 2 to 1, held that in 11 of the districts \"the [S]tate ha[d] [unconstitutionally] sorted voters . . . based on the color of their skin.\" Bethune-Hill v. Virginia State Bd. of Elections, 326 F. Supp. 3d 128, 180 (2018). The court therefore enjoined Virginia \"from conducting any elections . . . for the office of Delegate . . . in the Challenged Districts until a new redistricting plan is adopted.\" Id., at 227. Recognizing the General Assembly’s \"primary jurisdiction\" over redistricting, the District Court gave the General Assembly approximately four months to \"adop[t] a new redistricting plan that eliminate[d] the constitutional infirmity.\" Ibid. A few weeks after the three-judge District Court’s ruling, Virginia’s Attorney General announced, both publicly and in a filing with the District Court, that the State would not pursue an appeal to this Court. Continuing the litigation, the Attorney General concluded, \"would not be in the best interest of the Commonwealth or its citizens.\" Defendants’ Opposition to Intervenor-Defendants’ Motion to Stay Injunction Pending Appeal Under 28 U. S. C. §1253 in No. 3:14–cv–852 (ED Va.), Doc. 246, p. 1. The House, however, filed an appeal to this Court, App. to Juris. Statement 357–358, which the State Defendants moved to dismiss for want of standing. We postponed probable jurisdiction, 586 U. S. ___ (2018), and now grant the State Defendants’ motion. The House, we hold, lacks authority to displace Virginia’s Attorney General as representative of the State. We further hold that the House, as a single chamber of a bicameral legislature, has no standing to appeal the invalidation of the redistricting plan separately from the State of which it is a part. I To reach the merits of a case, an Article III court must have jurisdiction. \"One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so.\" Hollingsworth v. Perry, 570 U. S. 693, 704 (2013). The three elements of standing, this Court has reiterated, are (1) a concrete and particularized injury, that (2) is fairly traceable to the challenged conduct, and (3) is likely to be redressed by a favorable decision. Ibid. (citing Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992)). Although rulings on standing often turn on a plaintiff ’s stake in initially filing suit, \"Article III demands that an ‘actual controversy’ persist throughout all stages of litigation.\" Hollingsworth, 570 U. S., at 705 (quoting Already, LLC v. Nike, Inc., 568 U. S. 85, 90–91 (2013)). The standing requirement therefore \"must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.\" Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997). As a jurisdictional requirement, standing to litigate cannot be waived or forfeited. And when standing is questioned by a court or an opposing party, the litigant invoking the court’s jurisdiction must do more than simply allege a nonobvious harm. See Wittman v. Personhuballah, 578 U. S. ___, ___– ___ (2016) (slip op., at 5–6). To cross the standing threshold, the litigant must explain how the elements essential to standing are met. Before the District Court, the House participated in both bench trials as an intervenor in support of the State Defendants. And in the prior appeal to this Court, the House participated as an appellee. Because neither role entailed invoking a court’s jurisdiction, it was not previously incumbent on the House to demonstrate its standing. That situation changed when the House alone endeavored to appeal from the District Court’s order holding 11 districts unconstitutional, thereby seeking to invoke this Court’s jurisdiction. As the Court has repeatedly recognized, to appeal a decision that the primary party does not challenge, an intervenor must independently demonstrate standing. Wittman, 578 U. S. ___; Diamond v. Charles, 476 U. S. 54 (1986). We find unconvincing the House’s arguments that it has standing, either to represent the State’s interests or in its own right. II A The House urges first that it has standing to represent the State’s interests. Of course, \"a State has standing to defend the constitutionality of its statute.\" Id., at 62. No doubt, then, the State itself could press this appeal. And, as this Court has held, \"a State must be able to designate agents to represent it in federal court.\" Hollingsworth, 570 U. S., at 710. So if the State had designated the House to represent its interests, and if the House had in fact carried out that mission, we would agree that the House could stand in for the State. Neither precondition, however, is met here. To begin with, the House has not identified any legal basis for its claimed authority to litigate on the State’s behalf. Authority and responsibility for representing the State’s interests in civil litigation, Virginia law prescribes, rest exclusively with the State’s Attorney General: \"All legal service in civil matters for the Commonwealth, the Governor, and every state department, institution, division, commission, board, bureau, agency, entity, official, court, or judge . . . shall be rendered and performed by the Attorney General, except as provided in this chapter and except for [certain judicial misconduct proceedings].\" Va. Code Ann. §2.2– 507(A) (2017).2 Virginia has thus chosen to speak as a sovereign entity with a single voice. In this regard, the State has adopted an approach resembling that of the Federal Government, which \"centraliz[es]\" the decision whether to seek certiorari by \"reserving litigation in this Court to the Attorney General and the Solicitor General.\" United States v. Providence Journal Co., 485 U. S. 693, 706 (1988) (dismissing a writ of certiorari sought by a special prosecutor without authorization from the Solicitor General); see 28 U. S. C. §518(a); 28 CFR §0.20(a) (2018). Virginia, had it so chosen, could have authorized the House to litigate on the State’s behalf, either generally or in a defined class of cases. Hollingsworth, 570 U. S., at 710. Some States have done just that. Indiana, for example, empowers \"[t]he House of Representatives and Senate of the Indiana General Assembly . . . to employ attorneys other than the Attorney General to defend any law enacted creating legislative or congressional districts for the State of Indiana.\" Ind. Code §2–3–8–1 (2011). But the choice belongs to Virginia, and the House’s argument that it has authority to represent the State’s interests is foreclosed by the State’s contrary decision. The House observes that Virginia state courts have permitted it to intervene to defend legislation. But the sole case the House cites on this point—Vesilind v. Virginia State Bd. of Elections, 295 Va. 427, 813 S. E. 2d 739 (2018)—does not bear the weight the House would place upon it. In Vesilind, the House intervened in support of defendants in the trial court, and continued to defend the trial court’s favorable judgment on appeal. Id., at 433– 434, 813 S. E. 2d, at 742. The House’s participation in Vesilind thus occurred in the same defensive posture as did the House’s participation in earlier phases of this case, when the House did not need to establish standing. Moreover, the House has pointed to nothing in the Virginia courts’ decisions in the Vesilind litigation suggesting that the courts understood the House to be representing the interests of the State itself. Nonetheless, the House insists, this Court’s decision in Karcher v. May, 484 U. S. 72 (1987), dictates that we treat Vesilind as establishing conclusively the House’s authority to litigate on the State’s behalf. True, in Karcher, the Court noted a record, similar to that in Vesilind, of litigation by state legislative bodies in state court, and concluded without extensive explanation that \"the New Jersey Legislature had authority under state law to represent the State’s interests . . . .\" 484 U. S., at 82. Of crucial significance, however, the Court in Karcher noted no New Jersey statutory provision akin to Virginia’s law vesting the Attorney General with exclusive authority to speak for the Commonwealth in civil litigation. Karcher therefore scarcely impels the conclusion that, despite Virginia’s clear enactment making the Attorney General the State’s sole representative in civil litigation, Virginia has designated the House as its agent to assert the State’s interests in this Court. Moreover, even if, contrary to the governing statute, we indulged the assumption that Virginia had authorized the House to represent the State’s interests, as a factual matter the House never indicated in the District Court that it was appearing in that capacity. Throughout this litigation, the House has purported to represent its own interests. Thus, in its motion to intervene, the House observed that it was \"the legislative body that actually drew the redistricting plan at issue,\" and argued that the existing parties—including the State Defendants—could not adequately protect its interests. App. 2965–2967. Nowhere in its motion did the House suggest it was intervening as agent of the State. That silence undermines the House’s attempt to proceed before us on behalf of the State. As another portion of the Court’s Karcher decision clarifies, a party may not wear on appeal a hat different from the one it wore at trial. 484 U. S., at 78 (parties may not appeal in particular capacities \"unless the record shows that they participated in those capacities below\").3 B The House also maintains that, even if it lacks standing to pursue this appeal as the State’s agent, it has standing in its own right. To support standing, an injury must be \"legally and judicially cognizable.\" Raines v. Byrd, 521 U. S. 811, 819 (1997). This Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage. The Court’s precedent thus lends no support for the notion that one House of a bicameral legislature, resting solely on its role in the legislative process, may appeal on its own behalf a judgment invalidating a state enactment. Seeking to demonstrate its asserted injury, the House emphasizes its role in enacting redistricting legislation in particular. The House observes that, under Virginia law, \"members of the Senate and of the House of Delegates of the General Assembly shall be elected from electoral districts established by the General Assembly.\" Va. Const., Art. 2, §6. The House has standing, it contends, because it is \"the legislative body that actually drew the redistricting plan,\" and because, the House asserts, any remedial order will transfer redistricting authority from it to the District Court. Brief for Appellants 23, 26–28 (internal quotation marks omitted). But the Virginia constitutional provision the House cites allocates redistricting authority to the \"General Assembly,\" of which the House constitutes only a part. That fact distinguishes this case from Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___ (2015), in which the Court recognized the standing of the Arizona House and Senate—acting together—to challenge a referendum that gave redistricting authority exclusively to an independent commission, thereby allegedly usurping the legislature’s authority under the Federal Constitution over congressional redistricting. In contrast to this case, in Arizona State Legislature there was no mismatch between the body seeking to litigate and the body to which the relevant constitutional provision allegedly assigned exclusive redistricting authority. See 576 U. S., at ___–___ (slip op., at 11–12). Just as individual members lack standing to assert the institutional interests of a legislature, see Raines, 521 U. S., at 829,4 a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole. Moreover, in Arizona State Legislature, the challenged referendum was assailed on the ground that it permanently deprived the legislative plaintiffs of their role in the redistricting process. Here, by contrast, the challenged order does not alter the General Assembly’s dominant initiating and ongoing role in redistricting. Compare Arizona State Legislature, 576 U. S., at ___ (slip op., at 14) (allegation of nullification of \"any vote by the Legislature, now or in the future, purporting to adopt a redistricting plan\" (internal quotation marks omitted)), with 326 F. Supp. 3d, at 227 (recognizing the General Assembly’s \"primary jurisdiction\" over redistricting and giving the General Assembly first crack at enacting a revised redistricting plan).5 Nor does Coleman v. Miller, 307 U. S. 433 (1939), aid the House. There, the Court recognized the standing of 20 state legislators who voted against a resolution ratifying the proposed Child Labor Amendment to the Federal Constitution. Id., at 446. The resolution passed, the opposing legislators stated, only because the Lieutenant Governor cast a tie-breaking vote—a procedure the legislators argued was impermissible under Article V of the Federal Constitution. See Arizona State Legislature, 576 U. S., at ___–___ (slip op., at 13–14) (citing Coleman, 307 U. S., at 446). As the Court has since observed, Coleman stands \"at most\" \"for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.\" Raines, 521 U. S., at 823. Nothing of that sort happened here. Unlike Coleman, this case does not concern the results of a legislative chamber’s poll or the validity of any counted or uncounted vote. At issue here, instead, is the constitutionality of a concededly enacted redistricting plan. As we have already explained, a single House of a bicameral legislature generally lacks standing to appeal in cases of this order. Aside from its role in enacting the invalidated redistricting plan, the House, echoed by the dissent, see post, at 1–5, asserts that the House has standing because altered district boundaries may affect its composition. For support, the House and the dissent rely on Sixty-seventh Minnesota State Senate v. Beens, 406 U. S. 187 (1972) (per curiam), in which this Court allowed the Minnesota Senate to challenge a District Court malapportionment litigation order that reduced the Senate’s size from 67 to 35 members. The Court said in Beens: \"[C]ertainly the [Minnesota Senate] is directly affected by the District Court’s orders,\" rendering the Senate \"an appropriate legal entity for purpose of intervention and, as a consequence, of an appeal in a case of this kind.\" Id., at 194. Beens predated this Court’s decisions in Diamond v. Charles and other cases holding that intervenor status alone is insufficient to establish standing to appeal. Whether Beens established law on the question of standing, as distinct from intervention, is thus less than pellucid. But even assuming, arguendo, that Beens was, and remains, binding precedent on standing, the order there at issue injured the Minnesota Senate in a way the order challenged here does not injure the Virginia House. Cutting the size of a legislative chamber in half would necessarily alter its day-to-day operations. Among other things, leadership selection, committee structures, and voting rules would likely require alteration. By contrast, although redrawing district lines indeed may affect the membership of the chamber, the House as an institution has no cognizable interest in the identity of its members.6 Although the House urges that changes to district lines will \"profoundly disrupt its day-to-day operations,\" Reply Brief 3, it is scarcely obvious how or why that is so. As the party invoking this Court’s jurisdiction, the House bears the burden of doing more than \"simply alleg[ing] a nonobvious harm.\" Wittman, 578 U. S., at ___ (slip op., at 6). Analogizing to \"group[s] other than a legislative body,\" the dissent insists that the House has suffered an \"obvious\" injury. Post, at 3. But groups like the string quartet and basketball team posited by the dissent select their own members. Similarly, the political parties involved in the cases the dissent cites, see post, at 3, n. 1 (citing New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 202 (2008), and Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 229–230 (1989)), select their own leadership and candidates. In stark contrast, the House does not select its own members. Instead, it is a representative body composed of members chosen by the people. Changes to its membership brought about by the voting public thus inflict no cognizable injury on the House.7 The House additionally asserts injury from the creation of what it calls \"divided constituencies,\" suggesting that a court order causing legislators to seek reelection in districts different from those they currently represent affects the House’s representational nature. But legislative districts change frequently—indeed, after every decennial census—and the Virginia Constitution resolves any confusion over which district is being represented. It provides that delegates continue to represent the districts that elected them, even if their reelection campaigns will be waged in different districts. Va. Const., Art. 2, §6 (\"A member in office at the time that a decennial redistricting law is enacted shall complete his term of office and shall continue to represent the district from which he was elected for the duration of such term of office . . . .\"). We see little reason why the same would not hold true after districting changes caused by judicial decisions, and we thus foresee no representational confusion. And if harms centered on costlier or more difficult election campaigns are cognizable—a question that, as in Wittman, 578 U. S., at ___–___ (slip op., at 5–6), we need not decide today—those harms would be suffered by individual legislators or candidates, not by the House as a body. In short, Virginia would rather stop than fight on. One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process. For the reasons stated, we dismiss the House’s appeal for lack of jurisdiction."},
{"docket_number": "17-1606", "syllabus": "The Social Security Act permits judicial review of \"any final decision . . . after a hearing\" by the Social Security Administration (SSA). 42 U. S. C. §405(g). Claimants for, as relevant here, supplemental security income disability benefits under Title XVI of the Act must generally proceed through a four-step administrative process in order to obtain federal-court review: (1) seek an initial determination of eligibility; (2) seek reconsideration of that determination; (3) request a hearing before an administrative law judge (ALJ); and (4) seek review of the ALJ’s decision by the SSA’s Appeals Council. See 20 CFR §416.1400. A request for Appeals Council review generally must be made within 60 days of receiving the ALJ’s ruling, §416.1468; if the claimant misses the deadline and cannot show good cause for doing so, the Appeals Council dismisses the request, §416.1471. Petitioner Ricky Lee Smith’s claim for disability benefits under Title XVI was denied at the initial-determination stage, upon reconsideration, and on the merits after a hearing before an ALJ. The Appeals Council later dismissed Smith’s request for review as untimely. Smith sought judicial review of the dismissal in a Federal District Court, which held that it lacked jurisdiction to hear the suit. The Sixth Circuit affirmed, maintaining that the Appeals Council’s dismissal of an untimely petition is not a \"final decision\" subject to federal-court review. Held: An Appeals Council dismissal on timeliness grounds after a claimant has had an ALJ hearing on the merits qualifies as a \"final decision . . . made after a hearing\" for purposes of allowing judicial review under §405(g). Pp. 5–16. (a) The statute’s text supports this reading. In the first clause 2 SMITH v. BERRYHILL Syllabus (\"any final decision\"), the phrase \"final decision\" clearly denotes some kind of terminal event, and Congress’ use of \"any\" suggests an intent to use that term \"expansive[ly],\" Ali v. Federal Bureau of Prisons, 552 U. S. 214, 218–219. The Appeals Council’s dismissal of Smith’s claim fits that language: The SSA’s regulations make it the final stage of review. See 20 CFR §416.1472. As for the second clause (\"made after a hearing\"), Smith obtained the kind of hearing that §405(g) most naturally suggests: an ALJ hearing on the merits. This case differs from Califano v. Sanders, 430 U. S. 99, where the Court found that the SSA’s denial of a claimant’s petition to reopen a prior denial of his claim for benefits—a second look that the agency had made available to claimants as a matter of grace—was not a final decision under §405(g). Here, by contrast, the SSA’s \"final decision\" is much more closely tethered to the relevant \"hearing.\" A primary application for benefits may not be denied without an ALJ hearing (if requested), §405(b)(1), and a claimant’s access to this first bite at the apple is a matter of legislative right rather than agency grace. There is also no danger here of thwarting Congress’ own deadline, where the only potential untimeliness concerns Smith’s request for Appeals Council review, not his request for judicial review following the agency’s ultimate determination. Pp. 6–9. (b) The statutory context also weighs in Smith’s favor. Appeals from SSA determinations are, by their nature, appeals from the action of a federal agency. In the separate administrative-law context of Administrative Procedure Act (APA) review, an action is \"final\" if it both (1) \"mark[s] the ‘consummation’ of the agency’s decision-making process\" and (2) is \"one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’ \" Bennett v. Spear, 520 U. S. 154, 177–178. Both conditions are satisfied when a Social Security claimant has reached the final step of the SSA’s four-step process and has had his request for review dismissed as untimely. While the administrative-exhaustion requirement \"should be applied with regard for the particular administrative scheme at issue,\" Weinberger v. Salfi, 422 U. S. 749, 765, the differences between the two Acts here suggest that Congress wanted more oversight by the courts rather than less under §405(g) and that \"Congress designed [the statute as a whole] to be ‘unusually protective’ of claimants,\" Bowen v. City of New York, 476 U. S. 467, 480. SSA is also a massive enterprise and mistakes will occur; Congress did not suggest that it intended for this claimant-protective statute to leave a claimant with no recourse to the courts if a mistake does happen. Pp. 9–10. (c) Smith’s entitlement to judicial review is confirmed by \"the strong presumption that Congress intends judicial review of administrative action.\" Bowen v. Michigan Academy of Family Physicians, Cite as: 587 U. S. ____ (2019) 3 Syllabus 476 U. S. 667, 670. The heavy burden for rebutting this presumption is not met here. Congress left it to the SSA to define the procedures that claimants like Smith must first pass through, but it has not suggested that it intended for the SSA to be the unreviewable arbiter of whether claimants have complied with those procedures. Pp. 10–11. (d) The arguments of amicus in support of the judgment do not alter this conclusion. Amicus first argues that the phrase \"final decision . . . made after a hearing\" refers to a conclusive disposition, after exhaustion, of a benefits claim on the merits. However, this Court’s precedents do not support that reading; the Appeals Council’s dismissal is not merely collateral but an end to a proceeding in which a substantial factual record has already been developed and on which considerable resources have already been expended; and Smith’s case is distinct from Sanders. Amicus also claims that permitting greater judicial review could risk a flood of litigation, given the large volume of claims handled by the SSA, but that result is unlikely, because the number of Appeals Council untimeliness dismissals is comparatively small, and because data from the Eleventh Circuit, which follows the interpretation adopted here, do not bear out amicus’ warning. Third, amicus flags related contexts that could be informed by this ruling, but those issues are not before the Court. Finally, amicus argues that §405(g) is ambiguous and that the SSA’s longstanding interpretation of its meaning—prior to a change of position in this case—is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, but this is not the kind of question on which courts defer to agencies. Pp. 11–14. (e) A reviewing court that disagrees with the procedural ground for the Appeals Council dismissal should in the ordinary case remand the case to allow the agency to address substantive issues in the first place. While there would be jurisdiction for a court to reach the merits, this general rule comports with fundamental administrative-law principles and is confirmed by the Court’s cases discussing exhaustion in the Social Security context, see City of New York, 476 U. S., at 485. Pp. 14–16. 880 F. 3d 813, reversed and remanded.", "opinion": "The Social Security Act allows for judicial review of \"any final decision . . . made after a hearing\" by the Social Security Administration (SSA). 42 U. S. C. §405(g). Petitioner Ricky Lee Smith was denied Social Security benefits after a hearing by an administrative law judge (ALJ) and later had his appeal from that denial dismissed as untimely by the SSA’s Appeals Council—the agency’s final decisionmaker. This case asks whether the Appeals Council’s dismissal of Smith’s claim is a \"final decision . . . made after a hearing\" so as to allow judicial review under §405(g). We hold that it is. I A Congress enacted the Social Security Act in 1935, responding to the crisis of the Great Depression. 49 Stat. 620; F. Bloch, Social Security Law and Practice 13 (2012). In its early days, the program was administered by a body called the Social Security Board; that role has since passed on to the Board’s successor, the SSA.1 In 1939, Congress amended the Act, adding various provisions that—subject to changes not at issue here— continue to govern cases like this one. See Social Security Act Amendments of 1939, ch. 666, 53 Stat. 1360. First, Congress gave the agency \"full power and authority to make rules and regulations and to establish procedures . . . necessary or appropriate to carry out\" the Act. §405(a). Second, Congress directed the agency \"to make findings of fac[t] and decisions as to the rights of any individual applying for a payment\" and to provide all eligible claimants—that is, people seeking benefits—with an \"opportunity for a hearing with respect to such decision[s].\" §405(b)(1). Third, and most centrally, Congress provided for judicial review of \"any final decision of the [agency] made after a hearing.\" §405(g). At the same time, Congress made clear that review would be available only \"as herein provided\"—that is, only under the terms of §405(g). §405(h); see Heckler v. Ringer, 466 U. S. 602, 614–615 (1984). In 1940, the Social Security Board created the Appeals Council, giving it responsibility for overseeing and reviewing the decisions of the agency’s hearing officers (who, today, are ALJs).2 Though the Appeals Council originally had just three members, its ranks have since swelled to include over 100 individuals serving as either judges or officers.3 The Appeals Council remains a creature of regulatory rather than statutory creation. Today, the Social Security Act provides disability benefits under two programs, known by their statutory headings as Title II and Title XVI. See §401 et seq. (Title II); §1381 et seq. (Title XVI). Title II \"provides old-age, survivor, and disability benefits to insured individuals irrespective of financial need.\" Bowen v. Galbreath, 485 U. S. 74, 75 (1988). Title XVI provides supplemental security income benefits \"to financially needy individuals who are aged, blind, or disabled regardless of their insured status.\" Ibid. The regulations that govern the two programs are, for today’s purposes, equivalent. See Sims v. Apfel, 530 U. S. 103, 107, n. 2 (2000).4 Likewise, §405(g) sets the terms of judicial review for each. See §1383(c)(3). Modern-day claimants must generally proceed through a four-step process before they can obtain review from a federal court. First, the claimant must seek an initial determination as to his eligibility. Second, the claimant must seek reconsideration of the initial determination. Third, the claimant must request a hearing, which is conducted by an ALJ. Fourth, the claimant must seek review of the ALJ’s decision by the Appeals Council. See 20 CFR §416.1400. If a claimant has proceeded through all four steps on the merits, all agree, §405(g) entitles him to judicial review in federal district court.5 The tension in this case stems from the deadlines that SSA regulations impose for seeking each successive stage of review. A party who seeks Appeals Council review, as relevant here, must file his request within 60 days of receiving the ALJ’s ruling, unless he can show \"good cause for missing the deadline.\" §416.1468. The Appeals Council’s review is discretionary: It may deny even a timely request without issuing a decision. See §416.1481. If a claimant misses the deadline and cannot show good cause, however, the Appeals Council does not deny the request but rather dismisses it. §416.1471. Dismissals are \"binding and not subject to further review\" by the SSA. §416.1472. The question here is whether a dismissal for untimeliness, after the claimant has had an ALJ hearing, is a \"final decision . . . made after a hearing\" for purposes of allowing judicial review under §405(g). B Petitioner Ricky Lee Smith applied for disability benefits under Title XVI in 2012. Smith’s claim was denied at the initial-determination stage and upon reconsideration. Smith then requested an ALJ hearing, which the ALJ held in February 2014 before issuing a decision denying Smith’s claim on the merits in March 2014. The parties dispute what happened next. Smith’s attorney says that he sent a letter requesting Appeals Council review in April 2014, well within the 60-day deadline. The SSA says that it has no record of receiving any such letter. In late September 2014, Smith’s attorney sent a copy of the letter that he assertedly had mailed in April. The SSA, noting that it had no record of prior receipt, counted the date of the request as the day that it received the copy. The Appeals Council accordingly determined that Smith’s submission was untimely, concluded that Smith lacked good cause for missing the deadline, and dismissed Smith’s request for review. Smith sought judicial review of that dismissal in the U. S. District Court for the Eastern District of Kentucky. The District Court held that it lacked jurisdiction to hear his suit. The U. S. Court of Appeals for the Sixth Circuit affirmed, maintaining that \"an Appeals Council decision to refrain from considering an untimely petition for review is not a ‘final decision’ subject to judicial review in federal court.’\" Smith v. Commissioner of Social Security, 880 F. 3d 813, 814 (2018). Smith petitioned this Court for certiorari. Responding to Smith’s petition, the Government stated that while the Sixth Circuit’s decision accorded with the SSA’s longstanding position, the Government had \"reexamined the question and concluded that its prior position was incorrect.\" Brief for Respondent on Pet. for Cert. 15. We granted certiorari to resolve a conflict among the Courts of Appeals. 586 U. S. ___ (2018).6 Because the Government agrees with Smith that the Appeals Council’s dismissal meets §405(g)’s terms, we appointed Deepak Gupta as amicus curiae to defend the judgment below. 586 U. S. ___ (2018). He has ably discharged his duties. II Section 405(g), as noted above, provides for judicial review of \"any final decision . . . made after a hearing.\" This provision, the Court has explained, contains two separate elements: first, a \"jurisdictional\" requirement that claims be presented to the agency, and second, a \"waivable . . . requirement that the administrative remedies prescribed by the Secretary be exhausted.\" Mathews v. Eldridge, 424 U. S. 319, 328 (1976). This case involves the latter, non-jurisdictional element of administrative exhaustion. While §405(g) delegates to the SSA the authority to dictate which steps are generally required, see Sims, 530 U. S., at 106, exhaustion of those steps may not only be waived by the agency, see Weinberger v. Salfi, 422 U. S. 749, 767 (1975), but also excused by the courts, see Bowen v. City of New York, 476 U. S. 467, 484 (1986); Eldridge, 424 U. S., at 330.7 The question here is whether a dismissal by the Appeals Council on timeliness grounds after a claimant has received an ALJ hearing on the merits qualifies as a \"final decision . . . made after a hearing\" for purposes of allowing judicial review under §405(g). In light of the text, the context, and the presumption in favor of the reviewability of agency action, we conclude that it does. A We begin with the text. Taking the first clause (\"any final decision\") first, we note that the phrase \"final decision\" clearly denotes some kind of terminal event,8 and Congress’ use of the word \"any\" suggests an intent to use that term \"expansive[ly],\" see Ali v. Federal Bureau of Prisons, 552 U. S. 214, 218–219 (2008). The Appeals Council’s dismissal of Smith’s claim fits that language: Under the SSA’s own regulations, it was the final stage of review. See 20 CFR §416.1472. Turning to the second clause (\"made after a hearing\"), we note that this phrase has been the subject of some confusion over the years. On the one hand, the statute elsewhere repeatedly uses the word \"hearing\" to signify an ALJ hearing,9 which suggests that, in the ordinary case, the phrase here too denotes an ALJ hearing. See, e.g., IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005) (noting \"the normal rule of statutory interpretation that identical words used in different parts of the same statute are generally presumed to have the same meaning\"). On the other hand, the Court’s precedents make clear that an ALJ hearing is not an ironclad prerequisite for judicial review. See, e.g., City of New York, 476 U. S., at 484 (emphasizing the Court’s \"‘intensely practical’\" approach to the applicability of the exhaustion requirement and disapproving \"mechanical application\" of a set of factors). There is no need today to give §405(g) a definition for all seasons, because, in any event, this is a mine-run case and Smith obtained the kind of hearing that §405(g) most naturally suggests: an ALJ hearing on the merits.10 In other words, even giving §405(g) a relatively strict reading, Smith appears to satisfy its terms.11 Smith cannot, however, satisfy §405(g)’s \"after a hearing\" requirement as a matter of mere chronology.12 In Califano v. Sanders, 430 U. S. 99 (1977), the Court considered whether the SSA’s denial of a claimant’s petition to reopen a prior denial of his claim for benefits qualified as a final decision under §405(g). Id., at 102–103, 107–109. The Court concluded that it did not, reasoning that a petition to reopen was a matter of agency grace that could be denied without a hearing altogether and that allowing judicial review would thwart Congress’ own deadline for seeking such review. See id., at 108–109. That the SSA’s denial of the petition to reopen (1) was conclusive and (2) postdated an ALJ hearing did not, alone, bring it within the meaning of §405(g). Here, by contrast, the SSA’s \"final decision\" is much more closely tethered to the relevant \"hearing.\" Unlike a petition to reopen, a primary application for benefits may not be denied without an ALJ hearing (assuming the claimant timely requests one, as Smith did). §405(b)(1). Moreover, the claimant’s access to this first bite at the apple is indeed a matter of legislative right rather than agency grace. See id., at 108. And, again unlike the situation in Sanders, there is no danger here of thwarting Congress’ own deadline, given that the only potential untimeliness here concerns Smith’s request for Appeals Council review—not his request for judicial review following the agency’s ultimate determination. B The statutory context weighs in Smith’s favor as well. Appeals from SSA determinations are, by their nature, appeals from the action of a federal agency, and in the separate administrative-law context of the Administrative Procedure Act (APA), an action is \"final\" if it both (1) \"mark[s] the ‘consummation’ of the agency’s decision-making process\" and (2) is \"one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’\" Bennett v. Spear, 520 U. S. 154, 177–178 (1997). Both conditions are satisfied when a Social Security claimant has reached the fourth and final step of the SSA’s four-step process and has had his request for review dismissed as untimely. It is consistent to treat the Appeals Council’s dismissal of Smith’s claim as a final decision as well. To be clear, \"the doctrine of administrative exhaustion should be applied with a regard for the particular administrative scheme at issue,\" Salfi, 422 U. S., at 765, and we leave this axiom undisturbed today. The Social Security Act and the APA are different statutes, and courts must remain sensitive to their differences. See, e.g., Sullivan v. Hudson, 490 U. S. 877, 885 (1989) (observing that \"[a]s provisions for judicial review of agency action go, §405(g) is somewhat unusual\" in that its \"detailed provisions . . . suggest a degree of direct interaction between a federal court and an administrative agency alien to\" APA review). But at least some of these differences suggest that Congress wanted more oversight by the courts in this context rather than less, see ibid.,13 and the statute as a whole is one that \"Congress designed to be ‘unusually protective’ of claimants,\" City of New York, 476 U. S., at 480. We note further that the SSA is a massive enterprise,14 and mistakes will occur. See Brief for National Organization of Social Security Claimants’ Representatives as Amicus Curiae 13 (collecting examples).15 The four steps preceding judicial review, meanwhile, can drag on for years.16 While mistakes by the agency may be admirably rare, we do not presume that Congress intended for this claimant-protective statute, see City of New York, 476 U. S., at 480, to leave a claimant without recourse to the courts when such a mistake does occur—least of all when the claimant may have already expended a significant amount of likely limited resources in a lengthy proceeding. C Smith’s entitlement to judicial review is confirmed by \"the strong presumption that Congress intends judicial review of administrative action.\" Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670 (1986). \"That presumption,\" of course, \"is rebuttable: It fails when a statute’s language or structure demonstrates that Congress wanted an agency to police its own conduct.\" Mach Mining, LLC v. EEOC, 575 U. S. 480, ___–___ (2015) (slip op., at 4–5). But the burden for rebutting it is \"‘heavy,’\" id., at ___ (slip op., at 5), and that burden is not met here. While Congress left it to the SSA to define the procedures that claimants like Smith must first pass through, see Sims, 530 U. S., at 106, Congress has not suggested that it intended for the SSA to be the unreviewable arbiter of whether claimants have complied with those procedures. Where, as here, a claimant has received a claim-ending timeliness determination from the agency’s last-in-line decisionmaker after bringing his claim past the key procedural post (a hearing) mentioned in §405(g), there has been a \"final decision . . . made after a hearing\" under §405(g).17 III Amicus’ arguments to the contrary have aided our consideration of this case, but they have not dissuaded us from concluding that the Appeals Council’s dismissal of Smith’s claim satisfied §405(g). Amicus first argues that the phrase \"final decision . . . made after a hearing\" refers to a conclusive disposition, after exhaustion, of a benefits claim on the merits—that is, on a basis for which the Social Security Act entitles a claimant to a hearing. This reading follows, amicus argues, from the Court’s observations that §405(g) generally requires exhaustion, and moreover from Sanders’ suggestion, see 430 U. S., at 108, that review is not called for where a claimant loses on an agency-determined procedural ground that is divorced from the substantive matters for which a hearing is required. Even if Smith did receive a hearing on the merits, amicus argues, the conclusive determination was not on that basis, and \"[i]t would be unnatural to read the statute as throwing open the gates to judicial review of any final decision, no matter how collateral,\" just because such a hearing occurred. Brief for Court-Appointed Amicus Curiae 34. We disagree. First, as noted above, the Court’s precedents do not make exhaustion a pure necessity, indicating instead that while the SSA is empowered to define the steps claimants must generally take, the SSA is not also the unreviewable arbiter of whether a claimant has sufficiently complied with those steps. See supra, at 5–6, and n. 7. Second, the Appeals Council’s dismissal is not merely collateral; such a dismissal calls an end to a proceeding in which a substantial factual record has already been developed and on which considerable resources have already been expended. See supra, at 10, and n. 16. Accepting amicus’ argument would mean that a claimant could make it to the end of the SSA’s process and then have judicial review precluded simply because the Appeals Council stamped \"untimely\" on the request, even if that designation were patently inaccurate. While there may be contexts in which the law is so unforgiving, this is not one. See supra, at 9–11. Smith’s case, as noted above, is also distinct from Sanders. See supra, at 8. Sanders, after all, involved the SSA’s denial of a petition for reopening—a second look that the agency had made available to claimants as a matter of grace. See 430 U. S., at 101–102, 107–108. But Smith is not seeking a second look at an already-final denial; he argues that he was wrongly prevented from continuing to pursue his primary claim for benefits. That primary claim, meanwhile, is indeed a matter of statutory entitlement. See §405(b). Amicus also emphasizes that the SSA handles a large volume of claims, such that a decision providing for greater judicial review could risk a flood of litigation. That result seems unlikely for a few reasons. First, the number of Appeals Council untimeliness dismissals is comparatively small—something on the order of 2,500 dismissals out of 160,000 dispositions per year.18 Second, the interpretation that Smith and the Government urge has been the law since 1983 in the Eleventh Circuit, and the data there do not bear out amicus’ warning. See Reply Brief for Respondent 14–15 (collecting statistics). Third, while amicus flags related contexts that could be informed by today’s ruling, see Brief for Court-Appointed Amicus Curiae 36–40, those issues are not before us. We therefore do not address them other than to reinforce that such questions must be considered in the light of \"the particular administrative scheme at issue.\" See Salfi, 422 U. S., at 765. Today’s decision, therefore, hardly knocks loose a line of dominoes. Finally, amicus argues that the meaning of §405(g) is ambiguous and that the SSA’s longstanding interpretation of §405(g)—prior to its changed position during the pendency of this case—is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The Government and Smith maintain that the statute unambiguously supports the Government’s new position, and Smith further asserts that deference is inappropriate where the Government itself has rejected the interpretation in question in its filings. We need not decide whether the statute is unambiguous or what to do with the curious situation of an amicus curiae seeking deference for an interpretation that the Government’s briefing rejects. Chevron deference \"‘is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.’\" King v. Burwell, 576 U. S. ___, ___ (2015) (slip op., at 8). The scope of judicial review, meanwhile, is hardly the kind of question that the Court presumes that Congress implicitly delegated to an agency. Indeed, roughly six years after Chevron was decided, the Court declined to give Chevron deference to the Secretary of Labor’s interpretation of a federal statute that would have foreclosed private rights of action under certain circumstances. See Adams Fruit Co. v. Barrett, 494 U. S. 638, 649–650 (1990). As the Court explained, Congress’ having created \"a role for the Department of Labor in administering the statute\" did \"not empower the Secretary to regulate the scope of the judicial power vested by the statute.\" Id., at 650. Rather, \"[a]lthough agency determinations within the scope of delegated authority are entitled to deference, it is fundamental ‘that an agency may not bootstrap itself into an area in which it has no jurisdiction.’\" Ibid. Here, too, while Congress has empowered the SSA to create a scheme of administrative exhaustion, see Sims, 530 U. S., at 106, Congress did not delegate to the SSA the power to determine \"the scope of the judicial power vested by\" §405(g) or to determine conclusively when its dictates are satisfied. Adams Fruit Co., 494 U. S., at 650. Consequently, having concluded that Smith and the Government have the better reading of §405(g), we need go no further. IV Although they agree that §405(g) permits judicial review of the Appeals Council’s dismissal in this case, Smith and the Government disagree somewhat about the scope of review on remand.19 Smith argues that if a reviewing court disagrees with the procedural ground for dismissal, it can then proceed directly to the merits, while the Government argues that the proper step in such a case would be to remand. We largely agree with the Government. To be sure, there would be jurisdiction for a federal court to proceed to the merits in the way that Smith avers. For one, as noted above, exhaustion itself is not a jurisdictional prerequisite. See supra, at 5–6. Moreover, §405(g) states that a reviewing \"court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing\"—a broad grant of authority that reflects the high \"degree of direct interaction between a federal court and an administrative agency\" envisioned by §405(g). Hudson, 490 U. S., at 885. In short, there is no jurisdictional bar to a court’s reaching the merits. Fundamental principles of administrative law, however, teach that a federal court generally goes astray if it decides a question that has been delegated to an agency if that agency has not first had a chance to address the question. See, e.g., INS v. Orlando Ventura, 537 U. S. 12, 16, 18 (2002) (per curiam); ICC v. Locomotive Engineers, 482 U. S. 270, 283 (1987); cf. SEC v. Chenery Corp., 318 U. S. 80, 88 (1943) (\"For purposes of affirming no less than reversing its orders, an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency\"). The Court’s cases discussing exhaustion in the Social Security context confirm the prudence of applying this general principle here, where the agency’s final decisionmaker has not had a chance to address the merits at all.20 See City of New York, 476 U. S., at 485 (\"Because of the agency’s expertise in administering its own regulations, the agency ordinarily should be given the opportunity to review application of those regulations to a particular factual context\"); Salfi, 422 U. S., at 765 (explaining that exhaustion serves to \"preven[t] premature interference with agency processes\" and to give the agency \"an opportunity to correct its own errors,\" \"to afford the parties and the courts the benefit of its experience and expertise,\" and to produce \"a record which is adequate for judicial review\"). Accordingly, in an ordinary case, a court should restrict its review to the procedural ground that was the basis for the Appeals Council dismissal and (if necessary) allow the agency to address any residual substantive questions in the first instance.21 V We hold that where the SSA’s Appeals Council has dismissed a request for review as untimely after a claimant has obtained a hearing from an ALJ on the merits, that dismissal qualifies as a \"final decision . . . made after a hearing\" within the meaning of §405(g). The judgment of the United States Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered."},
{"docket_number": "17-1471", "syllabus": "Citibank, N. A., filed a debt-collection action in state court, alleging that respondent Jackson was liable for charges incurred on a Home Depot credit card. As relevant here, Jackson responded by filing third-party class-action claims against petitioner Home Deport U. S. A., Inc., and Carolina Water Systems, Inc., alleging that they had engaged in unlawful referral sales and deceptive and unfair trade practices under state law. Home Depot filed a notice to remove the case from state to federal court, but Jackson moved to remand, arguing that controlling precedent barred removal by a third-party counterclaim defendant. The District Court granted Jackson’s motion, and the Fourth Circuit affirmed, holding that neither the general removal provision, 28 U. S. C. §1441(a), nor the removal provision in the Class Action Fairness Act of 2005, §1453(b), allowed Home Depot to remove the class-action claims filed against it. Held: 1. Section 1441(a) does not permit removal by a third-party counterclaim defendant. Home Depot emphasizes that it is a \"defendant\" to a \"claim,\" but §1441(a) refers to \"civil action[s],\" not \"claims.\" And because the action as defined by the plaintiff’s complaint is the \"civil action . . . of which the district cour[t]\" must have \"original jurisdiction,\" \"the defendant\" to that action is the defendant to the complaint, not a party named in a counterclaim. This conclusion is bolstered by the use of the term \"defendant\" in related contexts. For one, the Federal Rules of Civil Procedure differentiate between thirdparty defendants, counterclaim defendants, and defendants. See, e.g., Rules 14, 12(a)(1)(A)–(B). And in other removal provisions, Congress has clearly extended removal authority to parties other than the original defendant, see, e.g., §§1452(a), 1454(a), (b), but has not done so here. Finally, if, as this Court has held, a counterclaim defendant who was the original plaintiff is not one of \"the defendants,\" see Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100, 106–109, there is no textual reason to reach a different conclusion for a counterclaim defendant who was not part of the initial lawsuit. This reading, Home Depot asserts, runs counter to the history and purposes of removal by preventing a party involuntarily brought into state-court proceedings from removing the claim against it to federal court. But the limits Congress has imposed on removal show that it did not intend to allow all defendants an unqualified right to remove, see, e.g., §1441(b)(2), and Home Depot’s interpretation makes little sense in the context of other removal provisions, see, e.g., §1446(b)(2)(A). Pp. 5–9. 2. Section 1453(b) does not permit removal by a third-party counterclaim defendant. Home Depot contends that even if §1441(a) does not permit removal here, §1453(b) does because it permits removal by \"any defendant\" to a \"class action.\" But the two clauses in §1453(b) that employ the term \"any defendant\" simply clarify that certain limitations on removal that might otherwise apply do not limit removal under that provision. And neither clause—nor anything else in the statute—alters §1441(a)’s limitation on who can remove, suggesting that Congress intended to leave that limit in place. In addition, §§1453(b) and 1441(a) both rely on the procedures for removal in §1446, which also employs the term \"defendant.\" Interpreting that term to have different meanings in different sections would render the removal provisions incoherent. Pp. 9–11. 880 F. 3d 165, affirmed.", "opinion": "The general removal statute, 28 U. S. C. §1441(a), provides that \"any civil action\" over which a federal court would have original jurisdiction may be removed to federal court by \"the defendant or the defendants.\" The Class Action Fairness Act of 2005 (CAFA) provides that \"[a] class action\" may be removed to federal court by \"any defendant without the consent of all defendants.\" 28 U. S. C. §1453(b). In this case, we address whether either provision allows a third-party counterclaim defendant— that is, a party brought into a lawsuit through a counterclaim filed by the original defendant—to remove the counterclaim filed against it. Because in the context of these removal provisions the term \"defendant\" refers only to the party sued by the original plaintiff, we conclude that neither provision allows such a third party to remove. I A We have often explained that \"[f]ederal courts are courts of limited jurisdiction.\" Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 377 (1994). Article III, §2, of the Constitution delineates \"[t]he character of the controversies over which federal judicial authority may extend.\" Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 701 (1982). And lower federal-court jurisdiction \"is further limited to those subjects encompassed within a statutory grant of jurisdiction.\" Ibid. Accordingly, \"the district courts may not exercise jurisdiction absent a statutory basis.\" Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 552 (2005). In 28 U. S. C. §§1331 and 1332(a), Congress granted federal courts jurisdiction over two general types of cases: cases that \"aris[e] under\" federal law, §1331, and cases in which the amount in controversy exceeds $75,000 and there is diversity of citizenship among the parties, §1332(a). These jurisdictional grants are known as \"federal-question jurisdiction\" and \"diversity jurisdiction,\" respectively. Each serves a distinct purpose: Federal-question jurisdiction affords parties a federal forum in which \"to vindicate federal rights,\" whereas diversity jurisdiction provides \"a neutral forum\" for parties from different States. Exxon Mobil Corp., supra, at 552. Congress has modified these general grants of jurisdiction to provide federal courts with jurisdiction in certain other types of cases. As relevant here, CAFA provides district courts with jurisdiction over \"class action[s]\" in which the matter in controversy exceeds $5,000,000 and at least one class member is a citizen of a State different from the defendant. §1332(d)(2)(A). A \"class action\" is \"any civil action filed under Rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure.\" §1332(d)(1)(B). In addition to granting federal courts jurisdiction over certain types of cases, Congress has enacted provisions that permit parties to remove cases originally filed in state court to federal court. Section 1441(a), the general removal statute, permits \"the defendant or the defendants\" in a state-court action over which the federal courts would have original jurisdiction to remove that action to federal court. To remove under this provision, a party must meet the requirements for removal detailed in other provisions. For one, a defendant cannot remove unilaterally. Instead, \"all defendants who have been properly joined and served must join in or consent to the removal of the action.\" §1446(b)(2)(A). Moreover, when federal jurisdiction is based on diversity jurisdiction, the case generally must be removed within \"1 year after commencement of the action,\" §1446(c)(1), and the case may not be removed if any defendant is \"a citizen of the State in which such action is brought,\" §1441(b)(2). CAFA also includes a removal provision specific to class actions. That provision permits the removal of a \"class action\" from state court to federal court \"by any defendant without the consent of all defendants\" and \"without regard to whether any defendant is a citizen of the State in which the action is brought.\" §1453(b). At issue here is whether the term \"defendant\" in either §1441(a) or §1453(b) encompasses a party brought into a lawsuit to defend against a counterclaim filed by the original defendant or whether the provisions limit removal authority to the original defendant. B In June 2016, Citibank, N. A., filed a debt-collection action against respondent George Jackson in North Carolina state court. Citibank alleged that Jackson was liable for charges he incurred on a Home Depot credit card. In August 2016, Jackson answered and filed his own claims: an individual counterclaim against Citibank and third-party class-action claims against Home Depot U. S. A., Inc., and Carolina Water Systems, Inc. Jackson’s claims arose out of an alleged scheme between Home Depot and Carolina Water Systems to induce homeowners to buy water treatment systems at inflated prices. The crux of the claims was that Home Depot and Carolina Water Systems engaged in unlawful referral sales and deceptive and unfair trade practices in violation of North Carolina law, Gen. Stat. Ann. §§25A–37, 75–1.1 (2013). Jackson also asserted that Citibank was jointly and severally liable for the conduct of Home Depot and Carolina Water Systems and that his obligations under the sale were null and void. In September 2016, Citibank dismissed its claims against Jackson. One month later, Home Depot filed a notice of removal, citing 28 U. S. C. §§1332, 1441, 1446, and 1453. Jackson moved to remand, arguing that precedent barred removal by a \"third-party/additional counter defendant like Home Depot.\" App. 51–52. Shortly thereafter, Jackson amended his third-party class-action claims to remove any reference to Citibank. The District Court granted Jackson’s motion to remand, and the Court of Appeals for the Fourth Circuit granted Home Depot permission to appeal and affirmed. 880 F. 3d 165, 167 (2018); see 28 U. S. C. §1453(c)(1). Relying on Circuit precedent, it held that neither the general removal provision, §1441(a), nor CAFA’s removal provision, §1453(b), allowed Home Depot to remove the class-action claims filed against it. 880 F. 3d, at 167–171. We granted Home Depot’s petition for a writ of certiorari to determine whether a third party named in a class-action counterclaim brought by the original defendant can remove if the claim otherwise satisfies the jurisdictional requirements of CAFA. 585 U. S. ___ (2018). We also directed the parties to address whether the holding in Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100 (1941)—that an original plaintiff may not remove a counterclaim against it—should extend to third-party counterclaim defendants.1 585 U. S. ___. II A We first consider whether 28 U. S. C. §1441(a) permits a third-party counterclaim defendant to remove a claim filed against it.2 Home Depot contends that because a third-party counterclaim defendant is a \"defendant\" to the claim against it, it may remove pursuant to §1441(a). The dissent agrees, emphasizing that \"a ‘defendant’ is a ‘person sued in a civil proceeding.’\" Post, at 9 (opinion of ALITO, J.). This reading of the statute is plausible, but we do not think it is the best one. Of course the term \"defendant,\" standing alone, is broad. But the phrase \"the defendant or the defendants\" \"cannot be construed in a vacuum.\" Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989). \"It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.\" Ibid.; see also A. Scalia & B. Garner, Reading Law 167 (2012) (\"The text must be construed as a whole\"); accord, Bailey v. United States, 516 U. S. 137, 145–146 (1995). Considering the phrase \"the defendant or the defendants\" in light of the structure of the statute and our precedent, we conclude that §1441(a) does not permit removal by any counterclaim defendant, including parties brought into the lawsuit for the first time by the counterclaim.3 Home Depot emphasizes that it is a \"defendant\" to a \"claim,\" but the statute refers to \"civil action[s],\" not \"claims.\" This Court has long held that a district court, when determining whether it has original jurisdiction over a civil action, should evaluate whether that action could have been brought originally in federal court. See Mexican Nat. R. Co. v. Davidson, 157 U. S. 201, 208 (1895); Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 461 (1894). This requires a district court to evaluate whether the plaintiff could have filed its operative complaint in federal court, either because it raises claims arising under federal law or because it falls within the court’s diversity jurisdiction. E.g., Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 10 (1983); cf. Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U. S. 826, 831 (2002) (\"[A] counterclaim . . . cannot serve as the basis for ‘arising under’ jurisdiction\"); §1446(c)(2) (deeming the \"sum demanded in good faith in the initial pleading . . . the amount in controversy\"). Section 1441(a) thus does not permit removal based on counterclaims at all, as a counterclaim is irrelevant to whether the district court had \"original jurisdiction\" over the civil action. And because the \"civil action . . . of which the district cour[t]\" must have \"original jurisdiction\" is the action as defined by the plaintiff ’s complaint, \"the defendant\" to that action is the defendant to that complaint, not a party named in a counterclaim. It is this statutory context, not \"the policy goals behind the [well-pleaded complaint] rule,\" post, at 23, that underlies our interpretation of the phrase \"the defendant or the defendants.\" The use of the term \"defendant\" in related contexts bolsters our determination that Congress did not intend for the phrase \"the defendant or the defendants\" in §1441(a) to include third-party counterclaim defendants. For one, the Federal Rules of Civil Procedure differentiate between third-party defendants, counterclaim defendants, and defendants. Rule 14, which governs \"Third-Party Practice,\" distinguishes between \"the plaintiff,\" a \"defendant\" who becomes the \"third-party plaintiff,\" and \"the third-party defendant\" sued by the original defendant. Rule 12 likewise distinguishes between defendants and counterclaim defendants by separately specifying when \"[a] defendant must serve an answer\" and when \"[a] party must serve an answer to a counterclaim.\" Fed. Rules Civ. Proc. 12(a)(1)(A)–(B). Moreover, in other removal provisions, Congress has clearly extended the reach of the statute to include parties other than the original defendant. For instance, §1452(a) permits \"[a] party\" in a civil action to \"remove any claim or cause of action\" over which a federal court would have bankruptcy jurisdiction. And §§1454(a) and (b) allow \"any party\" to remove \"[a] civil action in which any party asserts a claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.\" Section 1441(a), by contrast, limits removal to \"the defendant or the defendants\" in a \"civil action\" over which the district courts have original jurisdiction. Finally, our decision in Shamrock Oil suggests that third-party counterclaim defendants are not \"the defendant or the defendants\" who can remove under §1441(a). Shamrock Oil held that a counterclaim defendant who was also the original plaintiff could not remove under §1441(a)’s predecessor statute. 313 U. S., at 106–109. We agree with Home Depot that Shamrock Oil does not specifically address whether a party who was not the original plaintiff can remove a counterclaim filed against it. And we acknowledge, as Home Depot points out, that a third-party counterclaim defendant, unlike the original plaintiff, has no role in selecting the forum for the suit. But the text of §1441(a) simply refers to \"the defendant or the defendants\" in the civil action. If a counterclaim defendant who was the original plaintiff is not one of \"the defendants,\" we see no textual reason to reach a different conclusion for a counterclaim defendant who was not originally part of the lawsuit. In that regard, Shamrock Oil did not view the counterclaim as a separate action with a new plaintiff and a new defendant. Instead, the Court highlighted that the original plaintiff was still \"the plaintiff.\" Id., at 108 (\"We can find no basis for saying that Congress, by omitting from the present statute all reference to ‘plaintiffs,’ intended to save a right of removal to some plaintiffs and not to others\"). Similarly here, the filing of counterclaims that included class-action allegations against a third party did not create a new \"civil action\" with a new \"plaintiff \" and a new \"defendant.\" Home Depot asserts that reading \"the defendant\" in §1441(a) to exclude third-party counterclaim defendants runs counter to the history and purposes of removal by preventing a party involuntarily brought into state-court proceedings from removing the claim against it. But the limits Congress has imposed on removal show that it did not intend to allow all defendants an unqualified right to remove. E.g., §1441(b)(2) (preventing removal based on diversity jurisdiction where any defendant is a citizen of the State in which the action is brought). Moreover, Home Depot’s interpretation makes little sense in the context of other removal provisions. For instance, when removal is based on §1441(a), all defendants must consent to removal. See §1446(b)(2)(A). Under Home Depot’s interpretation, \"defendants\" in §1446(b)(2)(A) could be read to require consent from the third-party counterclaim defendant, the original plaintiff (as a counterclaim defendant), and the original defendant asserting claims against them. Further, Home Depot’s interpretation would require courts to determine when the original defendant is also a \"plaintiff \" under other statutory provisions. E.g., §1446(c)(1). Instead of venturing down this path, we hold that a third-party counterclaim defendant is not a \"defendant\" who can remove under §1441(a). B We next consider whether CAFA’s removal provision, §1453(b), permits a third-party counterclaim defendant to remove.4 Home Depot contends that even if it could not remove under §1441(a), it could remove under §1453(b) because that statute is worded differently. It argues that although §1441(a) permits removal only by \"the defendant or the defendants\" in a \"civil action,\" §1453(b) permits removal by \"any defendant\" to a \"class action.\" (Emphasis added.) Jackson responds that this argument ignores the context of §1453(b), which he contends makes clear that Congress intended only to alter certain restrictions on removal, not expand the class of parties who can remove a class action. Although this is a closer question, we agree with Jackson. The two clauses in §1453(b) that employ the term \"any defendant\" simply clarify that certain limitations on removal that might otherwise apply do not limit removal under §1453(b). Section 1453(b) first states that \"[a] class action may be removed . . . without regard to whether any defendant is a citizen of the State in which the action is brought.\" There is no indication that this language does anything more than alter the general rule that a civil action may not be removed on the basis of diversity jurisdiction \"if any of the . . . defendants is a citizen of the State in which such action is brought.\" §1441(b)(2). Section 1453(b) then states that \"[a] class action . . . may be removed by any defendant without the consent of all defendants.\" This language simply amends the rule that \"all defendants who have been properly joined and served must join in or consent to the removal of the action.\" §1446(b)(2)(A). Rather than indicate that a counterclaim defendant can remove, \"here the word ‘any’ is being employed in connection with the word ‘all’ later in the sentence—‘by any . . . without . . . the consent of all.’\" Westwood Apex v. Contreras, 644 F. 3d 799, 804 (CA9 2011); see Palisades Collections LLC v. Shorts, 552 F. 3d 327, 335–336 (CA4 2008). Neither clause—nor anything else in the statute—alters §1441(a)’s limitation on who can remove, which suggests that Congress intended to leave that limit in place. See supra, at 5–8. Thus, although the term \"any\" ordinarily carries an \"‘expansive meaning,’\" post, at 10, the context here demonstrates that Congress did not expand the types of parties eligible to remove a class action under §1453(b) beyond §1441(a)’s limits. If anything, that the language of §1453(b) mirrors the language in the statutory provisions it is amending suggests that the term \"defendant\" is being used consistently across all provisions. Cf. Mississippi ex rel. Hood v. AU Optronics Corp., 571 U. S. 161, 169–170 (2014) (interpreting CAFA consistently with Rule 20 where Congress used terms in a like manner in both provisions). To the extent Home Depot is arguing that the term \"defendant\" has a different meaning in §1453(b) than it does in §1441(a), we reject its interpretation. Because §§1453(b) and 1441(a) both rely on the procedures for removal in §1446, which also employs the term \"defendant,\" interpreting \"defendant\" to have different meanings in different sections would render the removal provisions incoherent. See First Bank v. DJL Properties, LLC, 598 F. 3d 915, 917 (CA7 2010) (Easterbrook, C. J.). Interpreting the removal provisions together, we determine that §1453(b), like §1441(a), does not permit a third-party counterclaim defendant to remove. Finally, the dissent argues that our interpretation allows defendants to use the statute as a \"tactic\" to prevent removal, post, at 7, but that result is a consequence of the statute Congress wrote. Of course, if Congress shares the dissent’s disapproval of certain litigation \"tactics,\" it certainly has the authority to amend the statute. But we do not. Because neither §1441(a) nor §1453(b) permits removal by a third-party counterclaim defendant, Home Depot could not remove the class-action claim filed against it. Accordingly, we affirm the judgment of the Fourth Circuit."},
{"docket_number": "20-843", "syllabus": "The State of New York makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to \"have and carry\" a concealed \"pistol or revolver\" if he can prove that \"proper cause exists\" for doing so. N. Y. Penal Law Ann. §400.00(2)(f ). An applicant satisfies the \"proper cause\" requirement only if he can \"demonstrate a special need for self-protection distinguishable from that of the general community.\" E.g., In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257. Petitioners Brandon Koch and Robert Nash are adult, law-abiding New York residents who both applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense. The State denied both of their applications for unrestricted licenses, allegedly because Koch and Nash failed to satisfy the \"proper cause\" requirement. Petitioners then sued respondents—state officials who oversee the processing of licensing applications—for declaratory and injunctive relief, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications for failure to demonstrate a unique need for self-defense. The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed. Both courts relied on the Second Circuit’s prior decision in Kachalsky v. County of Westchester, 701 F. 3d 81, which had sustained New York’s proper-cause standard, holding that the requirement was \"substantially related to the achievement of an important governmental interest.\" Id., at 96. Held: New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense. Pp. 8–63. (a) In District of Columbia v. Heller, 554 U. S. 570, and McDonald v. Chicago, 561 U. S. 742, the Court held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. Under Heller, when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation. Pp. 8–22. (1) Since Heller and McDonald, the Courts of Appeals have developed a \"two-step\" framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15. (2) Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to \"make difficult empirical judgments\" about \"the costs and benefits of firearms restrictions,\" especially given their \"lack [of] expertise\" in the field. McDonald, 561 U. S., at 790–791 (plurality opinion). Federal courts tasked with making difficult empirical judgments regarding firearm regulations under the banner of \"intermediate scrutiny\" often defer to the determinations of legislatures. While judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment \"is the very product of an interest balancing by the people,\" and it \"surely elevates above all other interests the right of law-abiding, responsible citizens to use arms\" for self-defense. Heller, 554 U. S., at 635. Pp. 15–17. (3) The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. See, e.g., United States v. Jones, 565 U. S. 400, 404–405. Indeed, the Court recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to \"arms\" does not apply \"only [to] those arms in existence in the 18th century.\" 554 U. S., at 582. To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified. Because \"individual self-defense is ‘the central component’ of the Second Amendment right,\" these two metrics are \" ‘central’ \" considerations when engaging in an analogical inquiry. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599). To be clear, even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster. For example, courts can use analogies to \"longstanding\" \"laws forbidding the carrying of firearms in sensitive places such as schools and government buildings\" to determine whether modern regulations are constitutionally permissible. Id., at 626. That said, respondents’ attempt to characterize New York’s proper-cause requirement as a \"sensitive-place\" law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a \"sensitive place\" simply because it is crowded and protected generally by the New York City Police Department. Pp. 17–22. (b) Having made the constitutional standard endorsed in Heller more explicit, the Court applies that standard to New York’s propercause requirement. Pp. 23–62. (1) It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of \"the people\" whom the Second Amendment protects. See Heller, 554 U. S., at 580. And no party disputes that handguns are weapons \"in common use\" today for self-defense. See id., at 627. The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of \"bear\" naturally encompasses public carry. Moreover, the Second Amendment guarantees an \"individual right to possess and carry weapons in case of confrontation,\" id., at 592, and confrontation can surely take place outside the home. Pp. 23–24. (2) The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. To do so, respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. But when it comes to interpreting the Constitution, not all history is created equal. \"Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.\" Heller, 554 U. S., at 634–635. The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. Pp. 24–62. (i) Respondents’ substantial reliance on English history and custom before the founding makes some sense given Heller’s statement that the Second Amendment \"codified a right ‘inherited from our English ancestors.’ \" 554 U. S., at 599. But the Court finds that history ambiguous at best and sees little reason to think that the Framers would have thought it applicable in the New World. The Court cannot conclude from this historical record that, by the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some special need for self-protection. Pp. 30–37. (ii) Respondents next direct the Court to the history of the Colonies and early Republic, but they identify only three restrictions on public carry from that time. While the Court doubts that just three colonial regulations could suffice to show a tradition of public-carry regulation, even looking at these laws on their own terms, the Court is not convinced that they regulated public carry akin to the New York law at issue. The statutes essentially prohibited bearing arms in a way that spread \"fear\" or \"terror\" among the people, including by carrying of \"dangerous and unusual weapons.\" See 554 U. S., at 627. Whatever the likelihood that handguns were considered \"dangerous and unusual\" during the colonial period, they are today \"the quintessential self-defense weapon.\" Id., at 629. Thus, these colonial laws provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today. Pp. 37–42. (iii) Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate. Respondents rely heavily on these restrictions, which generally fell into three categories: common-law offenses, statutory prohibitions, and \"surety\" statutes. None of these restrictions imposed a substantial burden on public carry analogous to that imposed by New York’s restrictive licensing regime. Common-Law Offenses. As during the colonial and founding periods, the common-law offenses of \"affray\" or going armed \"to the terror of the people\" continued to impose some limits on firearm carry in the antebellum period. But there is no evidence indicating that these common-law limitations impaired the right of the general population to peaceable public carry. Statutory Prohibitions. In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. But the antebellum state-court decisions upholding them evince a consensus view that States could not altogether prohibit the public carry of arms protected by the Second Amendment or state analogues. Surety Statutes. In the mid-19th century, many jurisdictions began adopting laws that required certain individuals to post bond before carrying weapons in public. Contrary to respondents’ position, these surety statutes in no way represented direct precursors to New York’s proper-cause requirement. While New York presumes that individuals have no public carry right without a showing of heightened need, the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of \"reasonable cause to fear an injury, or breach of the peace.\" Mass. Rev. Stat., ch. 134, §16 (1836). Thus, unlike New York’s regime, a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace. And, even then, proving special need simply avoided a fee. In sum, the historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation, but none of these limitations on the right to bear arms operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose. Pp. 42–51. (iv) Evidence from around the adoption of the Fourteenth Amendment also does not support respondents’ position. The \"discussion of the [right to keep and bear arms] in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves,\" Heller, 554 U. S., at 614, generally demonstrates that during Reconstruction the right to keep and bear arms had limits that were consistent with a right of the public to peaceably carry handguns for self-defense. The Court acknowledges two Texas cases—English v. State, 35 Tex. 473 and State v. Duke, 42 Tex. 455—that approved a statutory \"reasonable grounds\" standard for public carry analogous to New York’s proper-cause requirement. But these decisions were outliers and therefore provide little insight into how postbellum courts viewed the right to carry protected arms in public. See Heller, 554 U. S., at 632. Pp. 52–58 (v) Finally, respondents point to the slight uptick in gun regulation during the late-19th century. As the Court suggested in Heller, however, late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence. In addition, the vast majority of the statutes that respondents invoke come from the Western Territories. The bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry. See Heller, 554 U. S., at 614. Moreover, these territorial laws were rarely subject to judicial scrutiny, and absent any evidence explaining why these unprecedented prohibitions on all public carry were understood to comport with the Second Amendment, they do little to inform \"the origins and continuing significance of the Amendment.\" Ibid.; see also The Federalist No. 37, p. 229. Finally, these territorial restrictions deserve little weight because they were, consistent with the transitory nature of territorial government, short lived. Some were held unconstitutional shortly after passage, and others did not survive a Territory’s admission to the Union as a State. Pp. 58–62. (vi) After reviewing the Anglo-American history of public carry, the Court concludes that respondents have not met their burden to identify an American tradition justifying New York’s proper-cause requirement. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor have they generally required law-abiding, responsible citizens to \"demonstrate a special need for self-protection distinguishable from that of the general community\" to carry arms in public. Klenosky, 75 App. Div. 2d, at 793, 428 N. Y. S. 2d, at 257. P. 62. (c) The constitutional right to bear arms in public for self-defense is not \"a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.\" McDonald, 561 U. S., at 780 (plurality opinion). The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for selfdefense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public. Pp. 62–63. 818 Fed. Appx. 99, reversed and remanded.", "opinion": "In District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home. The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution. I A New York State has regulated the public carry of handguns at least since the early 20th century. In 1905, New York made it a misdemeanor for anyone over the age of 16 to \"have or carry concealed upon his person in any city or village of [New York], any pistol, revolver or other firearm without a written license . . . issued to him by a police magistrate.\" 1905 N. Y. Laws ch. 92, §2, pp. 129–130; see also 1908 N. Y. Laws ch. 93, §1, pp. 242–243 (allowing justices of the peace to issue licenses). In 1911, New York’s \"Sullivan Law\" expanded the State’s criminal prohibition to the possession of all handguns—concealed or otherwise—without a government-issued license. See 1911 N. Y. Laws ch. 195, §1, p. 443. New York later amended the Sullivan Law to clarify the licensing standard: Magistrates could \"issue to [a] person a license to have and carry concealed a pistol or revolver without regard to employment or place of possessing such weapon\" only if that person proved \"good moral character\" and \"proper cause.\" 1913 N. Y. Laws ch. 608, §1, p. 1629. Today’s licensing scheme largely tracks that of the early 1900s. It is a crime in New York to possess \"any firearm\" without a license, whether inside or outside the home, punishable by up to four years in prison or a $5,000 fine for a felony offense, and one year in prison or a $1,000 fine for a misdemeanor. See N. Y. Penal Law Ann. §§265.01–b (West 2017), 261.01(1) (West Cum. Supp. 2022), 70.00(2)(e) and (3)(b), 80.00(1)(a) (West 2021), 70.15(1), 80.05(1). Meanwhile, possessing a loaded firearm outside one’s home or place of business without a license is a felony punishable by up to 15 years in prison. §§265.03(3) (West 2017), 70.00(2)(c) and (3)(b), 80.00(1)(a). A license applicant who wants to possess a firearm at home (or in his place of business) must convince a \"licensing officer\"—usually a judge or law enforcement officer—that, among other things, he is of good moral character, has no history of crime or mental illness, and that \"no good cause exists for the denial of the license.\" §§400.00(1)(a)–(n) (West Cum. Supp. 2022). If he wants to carry a firearm outside his home or place of business for self-defense, the applicant must obtain an unrestricted license to \"have and carry\" a concealed \"pistol or revolver.\" §400.00(2)(f ). To secure that license, the applicant must prove that \"proper cause exists\" to issue it. Ibid. If an applicant cannot make that showing, he can receive only a \"restricted\" license for public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment. See, e.g., In re O’Brien, 87 N. Y. 2d 436, 438–439, 663 N. E. 2d 316, 316–317 (1996); Babernitz v. Police Dept. of City of New York, 65 App. Div. 2d 320, 324, 411 N. Y. S. 2d 309, 311 (1978); In re O’Connor, 154 Misc. 2d 694, 696–698, 585 N. Y. S. 2d 1000, 1003 (Westchester Cty. 1992). No New York statute defines \"proper cause.\" But New York courts have held that an applicant shows proper cause only if he can \"demonstrate a special need for self-protection distinguishable from that of the general community.\" E.g., In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257 (1980). This \"special need\" standard is demanding. For example, living or working in an area \"‘noted for criminal activity’\" does not suffice. In re Bernstein, 85 App. Div. 2d 574, 445 N. Y. S. 2d 716, 717 (1981). Rather, New York courts generally require evidence \"of particular threats, attacks or other extraordinary danger to personal safety.\" In re Martinek, 294 App. Div. 2d 221, 222, 743 N. Y. S. 2d 80, 81 (2002); see also In re Kaplan, 249 App. Div. 2d 199, 201, 673 N. Y. S. 2d 66, 68 (1998) (approving the New York City Police Department’s requirement of \"‘extraordinary personal danger, documented by proof of recurrent threats to life or safety’\" (quoting 38 N. Y. C. R. R. §5–03(b))). When a licensing officer denies an application, judicial review is limited. New York courts defer to an officer’s application of the proper-cause standard unless it is \"arbitrary and capricious.\" In re Bando, 290 App. Div. 2d 691, 692, 735 N. Y. S. 2d 660, 661 (2002). In other words, the decision \"must be upheld if the record shows a rational basis for it.\" Kaplan, 249 App. Div. 2d, at 201, 673 N. Y. S. 2d, at 68. The rule leaves applicants little recourse if their local licensing officer denies a permit. New York is not alone in requiring a permit to carry a handgun in public. But the vast majority of States—43 by our count—are \"shall issue\" jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.1 Meanwhile, only six States and the District of Columbia have \"may issue\" licensing laws, under which authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license. Aside from New York, then, only California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey have analogues to the \"proper cause\" standard.2 All of these \"proper cause\" analogues have been upheld by the Courts of Appeals, save for the District of Columbia’s, which has been permanently enjoined since 2017. Compare Gould v. Morgan, 907 F. 3d 659, 677 (CA1 2018); Kachalsky v. County of Westchester, 701 F. 3d 81, 101 (CA2 2012); Drake v. Filko, 724 F. 3d 426, 440 (CA3 2013); United States v. Masciandaro, 638 F. 3d 458, 460 (CA4 2011); Young v. Hawaii, 992 F. 3d 765, 773 (CA9 2021) (en banc), with Wrenn v. District of Columbia, 864 F. 3d 650, 668 (CADC 2017). B As set forth in the pleadings below, petitioners Brandon Koch and Robert Nash are law-abiding, adult citizens of Rensselaer County, New York. Koch lives in Troy, while Nash lives in Averill Park. Petitioner New York State Rifle & Pistol Association, Inc., is a public-interest group organized to defend the Second Amendment rights of New Yorkers. Both Koch and Nash are members. In 2014, Nash applied for an unrestricted license to carry a handgun in public. Nash did not claim any unique danger to his personal safety; he simply wanted to carry a handgun for self-defense. In early 2015, the State denied Nash’s application for an unrestricted license but granted him a restricted license for hunting and target shooting only. In late 2016, Nash asked a licensing officer to remove the restrictions, citing a string of recent robberies in his neighborhood. After an informal hearing, the licensing officer denied the request. The officer reiterated that Nash’s existing license permitted him \"to carry concealed for purposes of off road back country, outdoor activities similar to hunting,\" such as \"fishing, hiking & camping etc.\" App. 41. But, at the same time, the officer emphasized that the restrictions were \"intended to prohibit [Nash] from carrying concealed in ANY LOCATION typically open to and frequented by the general public.\" Ibid. Between 2008 and 2017, Koch was in the same position as Nash: He faced no special dangers, wanted a handgun for general self-defense, and had only a restricted license permitting him to carry a handgun outside the home for hunting and target shooting. In late 2017, Koch applied to a licensing officer to remove the restrictions on his license, citing his extensive experience in safely handling firearms. Like Nash’s application, Koch’s was denied, except that the officer permitted Koch to \"carry to and from work.\" Id., at 114. C Respondents are the superintendent of the New York State Police, who oversees the enforcement of the State’s licensing laws, and a New York Supreme Court justice, who oversees the processing of licensing applications in Rensselaer County. Petitioners sued respondents for declaratory and injunctive relief under Rev. Stat. 1979, 42 U. S. C. §1983, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications on the basis that they had failed to show \"proper cause,\" i.e., had failed to demonstrate a unique need for self-defense. The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed. See 818 Fed. Appx. 99, 100 (CA2 2020). Both courts relied on the Court of Appeals’ prior decision in Kachalsky, 701 F. 3d 81, which had sustained New York’s proper-cause standard, holding that the requirement was \"substantially related to the achievement of an important governmental interest.\" Id., at 96. We granted certiorari to decide whether New York’s denial of petitioners’ license applications violated the Constitution. 593 U. S. ___ (2021). II In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a \"two-step\" framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s \"unqualified command.\" Konigsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961). A Since Heller and McDonald, the two-step test that Courts of Appeals have developed to assess Second Amendment claims proceeds as follows. At the first step, the government may justify its regulation by \"establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood.\" E.g., Kanter v. Barr, 919 F. 3d 437, 441 (CA7 2019) (internal quotation marks omitted). But see United States v. Boyd, 999 F. 3d 171, 185 (CA3 2021) (requiring claimant to show \"‘a burden on conduct falling within the scope of the Second Amendment’s guarantee’\"). The Courts of Appeals then ascertain the original scope of the right based on its historical meaning. E.g., United States v. Focia, 869 F. 3d 1269, 1285 (CA11 2017). If the government can prove that the regulated conduct falls beyond the Amendment’s original scope, \"then the analysis can stop there; the regulated activity is categorically unprotected.\" United States v. Greeno, 679 F. 3d 510, 518 (CA6 2012) (internal quotation marks omitted). But if the historical evidence at this step is \"inconclusive or suggests that the regulated activity is not categorically unprotected,\" the courts generally proceed to step two. Kanter, 919 F. 3d, at 441 (internal quotation marks omitted). At the second step, courts often analyze \"how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.\" Ibid. (internal quotation marks omitted). The Courts of Appeals generally maintain \"that the core Second Amendment right is limited to self-defense in the home.\" Gould, 907 F. 3d, at 671 (emphasis added). But see Wrenn, 864 F. 3d, at 659 (\"[T]he Amendment’s core generally covers carrying in public for self defense\"). If a \"core\" Second Amendment right is burdened, courts apply \"strict scrutiny\" and ask whether the Government can prove that the law is \"narrowly tailored to achieve a compelling governmental interest.\" Kolbe v. Hogan, 849 F. 3d 114, 133 (CA4 2017) (internal quotation marks omitted). Otherwise, they apply intermediate scrutiny and consider whether the Government can show that the regulation is \"substantially related to the achievement of an important governmental interest.\" Kachalsky, 701 F. 3d, at 96.4 Both respondents and the United States largely agree with this consensus, arguing that intermediate scrutiny is appropriate when text and history are unclear in attempting to delineate the scope of the right. See Brief for Respondents 37; Brief for United States as Amicus Curiae 4. B Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms. 1 To show why Heller does not support applying means-end scrutiny, we first summarize Heller’s methodological approach to the Second Amendment. In Heller, we began with a \"textual analysis\" focused on the \"‘normal and ordinary’\" meaning of the Second Amendment’s language. 554 U. S., at 576–577, 578. That analysis suggested that the Amendment’s operative clause—\"the right of the people to keep and bear Arms shall not be infringed\"—\"guarantee[s] the individual right to possess and carry weapons in case of confrontation\" that does not depend on service in the militia. Id., at 592. From there, we assessed whether our initial conclusion was \"confirmed by the historical background of the Second Amendment.\" Ibid. We looked to history because \"it has always been widely understood that the Second Amendment . . . codified a pre-existing right.\" Ibid. The Amendment \"was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors.\" Id., at 599 (alterations and internal quotation marks omitted). After surveying English history dating from the late 1600s, along with American colonial views leading up to the founding, we found \"no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.\" Id., at 595. We then canvassed the historical record and found yet further confirmation. That history included the \"analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment,\" id., at 600–601, and \"how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century,\" id., at 605. When the principal dissent charged that the latter category of sources was illegitimate \"post-enactment legislative history,\" id., at 662, n. 28 (opinion of Stevens, J.), we clarified that \"examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification\" was \"a critical tool of constitutional interpretation,\" id., at 605 (majority opinion). In assessing the post-ratification history, we looked to four different types of sources. First, we reviewed \"[t]hree important founding-era legal scholars [who] interpreted the Second Amendment in published writings.\" Ibid. Second, we looked to \"19th-century cases that interpreted the Second Amendment\" and found that they \"universally support an individual right\" to keep and bear arms. Id., at 610. Third, we examined the \"discussion of the Second Amendment in Congress and in public discourse\" after the Civil War, \"as people debated whether and how to secure constitutional rights for newly freed slaves.\" Id., at 614. Fourth, we considered how post-Civil War commentators understood the right. See id., at 616–619. After holding that the Second Amendment protected an individual right to armed self-defense, we also relied on the historical understanding of the Amendment to demark the limits on the exercise of that right. We noted that, \"[l]ike most rights, the right secured by the Second Amendment is not unlimited.\" Id., at 626. \"From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.\" Ibid. For example, we found it \"fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’\" that the Second Amendment protects the possession and use of weapons that are \"‘in common use at the time.’\" Id., at 627 (first citing 4 W. Blackstone, Commentaries on the Laws of England 148–149 (1769); then quoting United States v. Miller, 307 U. S. 174, 179 (1939)). That said, we cautioned that we were not \"undertak[ing] an exhaustive historical analysis today of the full scope of the Second Amendment\" and moved on to considering the constitutionality of the District of Columbia’s handgun ban. 554 U. S., at 627. We assessed the lawfulness of that handgun ban by scrutinizing whether it comported with history and tradition. Although we noted that the ban \"would fail constitutional muster\" \"[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights,\" id., at 628–629, we did not engage in means-end scrutiny when resolving the constitutional question. Instead, we focused on the historically unprecedented nature of the District’s ban, observing that \"[f]ew laws in the history of our Nation have come close to [that] severe restriction.\" Id., at 629. Likewise, when one of the dissents attempted to justify the District’s prohibition with \"founding-era historical precedent,\" including \"various restrictive laws in the colonial period,\" we addressed each purported analogue and concluded that they were either irrelevant or \"d[id] not remotely burden the right of self-defense as much as an absolute ban on handguns.\" Id., at 631–632; see id., at 631–634. Thus, our earlier historical analysis sufficed to show that the Second Amendment did not countenance a \"complete prohibition\" on the use of \"the most popular weapon chosen by Americans for self-defense in the home.\" Id., at 629. 2 As the foregoing shows, Heller’s methodology centered on constitutional text and history. Whether it came to defining the character of the right (individual or militia dependent), suggesting the outer limits of the right, or assessing the constitutionality of a particular regulation, Heller relied on text and history. It did not invoke any means-end test such as strict or intermediate scrutiny. Moreover, Heller and McDonald expressly rejected the application of any \"judge-empowering ‘interest-balancing inquiry’ that ‘asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.’\" Heller, 554 U. S., at 634 (quoting id., at 689–690 (BREYER, J., dissenting)); see also McDonald, 561 U. S., at 790–791 (plurality opinion) (the Second Amendment does not permit—let alone require—\"judges to assess the costs and benefits of firearms restrictions\" under means-end scrutiny). We declined to engage in means-end scrutiny because \"[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.\" Heller, 554 U. S., at 634. We then concluded: \"A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.\" Ibid. Not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out the intermediate-scrutiny test that respondents and the United States now urge us to adopt. Dissenting in Heller, JUSTICE BREYER’s proposed standard—\"ask[ing] whether [a] statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests,\" id., at 689–690 (dissenting opinion)—simply expressed a classic formulation of intermediate scrutiny in a slightly different way, see Clark v. Jeter, 486 U. S. 456, 461 (1988) (asking whether the challenged law is \"substantially related to an important government objective\"). In fact, JUSTICE BREYER all but admitted that his Heller dissent advocated for intermediate scrutiny by repeatedly invoking a quintessential intermediate-scrutiny precedent. See Heller, 554 U. S., at 690, 696, 704– 705 (citing Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 (1997)). Thus, when Heller expressly rejected that dissent’s \"interest-balancing inquiry,\" 554 U. S., at 634 (internal quotation marks omitted), it necessarily rejected intermediate scrutiny. In sum, the Courts of Appeals’ second step is inconsistent with Heller’s historical approach and its rejection of means-end scrutiny. We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s \"unqualified command.\" Konigsberg, 366 U. S., at 50, n. 10. C This Second Amendment standard accords with how we protect other constitutional rights. Take, for instance, the freedom of speech in the First Amendment, to which Heller repeatedly compared the right to keep and bear arms. 554 U. S., at 582, 595, 606, 618, 634–635. In that context, \"[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.\" United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 816 (2000); see also Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 777 (1986). In some cases, that burden includes showing whether the expressive conduct falls outside of the category of protected speech. See Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 620, n. 9 (2003). And to carry that burden, the government must generally point to historical evidence about the reach of the First Amendment’s protections. See, e.g., United States v. Stevens, 559 U. S. 460, 468–471 (2010) (placing the burden on the government to show that a type of speech belongs to a \"historic and traditional categor[y]\" of constitutionally unprotected speech \"long familiar to the bar\" (internal quotation marks omitted)). And beyond the freedom of speech, our focus on history also comports with how we assess many other constitutional claims. If a litigant asserts the right in court to \"be confronted with the witnesses against him,\" U. S. Const., Amdt. 6, we require courts to consult history to determine the scope of that right. See, e.g., Giles v. California, 554 U. S. 353, 358 (2008) (\"admitting only those exceptions [to the Confrontation Clause] established at the time of the founding\" (internal quotation marks omitted)). Similarly, when a litigant claims a violation of his rights under the Establishment Clause, Members of this Court \"loo[k] to history for guidance.\" American Legion v. American Humanist Assn., 588 U. S. ___, ___ (2019) (plurality opinion) (slip op., at 25). We adopt a similar approach here. To be sure, \"[h]istorical analysis can be difficult; it sometimes requires resolving threshold questions and making nuanced judgments about which evidence to consult and how to interpret it.\" McDonald, 561 U. S., at 803–804 (Scalia, J., concurring). But reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to \"make difficult empirical judgments\" about \"the costs and benefits of firearms restrictions,\" especially given their \"lack [of] expertise\" in the field. Id., at 790–791 (plurality opinion). If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of \"intermediate scrutiny\" often defer to the determinations of legislatures. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment \"is the very product of an interest balancing by the people\" and it \"surely elevates above all other interests the right of law-abiding, responsible citizens to use arms\" for self-defense. Heller, 554 U. S., at 635. It is this balance—struck by the traditions of the American people—that demands our unqualified deference. D The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. In some cases, that inquiry will be fairly straightforward. For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. And if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality. Heller itself exemplifies this kind of straightforward historical inquiry. One of the District’s regulations challenged in Heller \"totally ban[ned] handgun possession in the home.\" Id., at 628. The District in Heller addressed a perceived societal problem—firearm violence in densely populated communities—and it employed a regulation—a flat ban on the possession of handguns in the home—that the Founders themselves could have adopted to confront that problem. Accordingly, after considering \"founding-era historical precedent,\" including \"various restrictive laws in the colonial period,\" and finding that none was analogous to the District’s ban, Heller concluded that the handgun ban was unconstitutional. Id., at 631; see also id., at 634 (describing the claim that \"there were somewhat similar restrictions in the founding period\" a \"false proposition\"). New York’s proper-cause requirement concerns the same alleged societal problem addressed in Heller: \"handgun violence,\" primarily in \"urban area[s].\" Ibid. Following the course charted by Heller, we will consider whether \"historical precedent\" from before, during, and even after the founding evinces a comparable tradition of regulation. Id., at 631. And, as we explain below, we find no such tradition in the historical materials that respondents and their amici have brought to bear on that question. See Part III–B, infra. While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution—and a Second Amendment— \"intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.\" McCulloch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis deleted). Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v. Jones, 565 U. S. 400, 404–405 (2012) (holding that installation of a tracking device was \"a physical intrusion [that] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted\"). We have already recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to \"arms\" does not apply \"only [to] those arms in existence in the 18th century.\" 554 U. S., at 582. \"Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.\" Ibid. (citations omitted). Thus, even though the Second Amendment’s definition of \"arms\" is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense. Cf. Caetano v. Massachusetts, 577 U. S. 411, 411–412 (2016) (per curiam) (stun guns). Much like we use history to determine which modern \"arms\" are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are \"relevantly similar.\" C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And because \"[e]verything is similar in infinite ways to everything else,\" id., at 774, one needs \"some metric enabling the analogizer to assess which similarities are important and which are not,\" F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar if one’s metric is \"things that are green.\" See ibid. They are not relevantly similar if the applicable metric is \"things you can wear.\" While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment, we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense. As we stated in Heller and repeated in McDonald, \"individual self-defense is ‘the central component’ of the Second Amendment right.\" McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599); see also id., at 628 (\"the inherent right of self-defense has been central to the Second Amendment right\"). Therefore, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are \"‘central’\" considerations when engaging in an analogical inquiry. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599). To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not \"uphold every modern law that remotely resembles a historical analogue,\" because doing so \"risk[s] endorsing outliers that our ancestors would never have accepted.\" Drummond v. Robinson, 9 F. 4th 217, 226 (CA3 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster. Consider, for example, Heller’s discussion of \"longstanding\" \"laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.\" 554 U. S., at 626. Although the historical record yields relatively few 18th- and 19th-century \"sensitive places\" where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. See D. Kopel & J. Greenlee, The \"Sensitive Places\" Doctrine, 13 Charleston L. Rev. 205, 229–236, 244– 247 (2018); see also Brief for Independent Institute as Amicus Curiae 11–17. We therefore can assume it settled that these locations were \"sensitive places\" where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of \"sensitive places\" to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible. Although we have no occasion to comprehensively define \"sensitive places\" in this case, we do think respondents err in their attempt to characterize New York’s proper-cause requirement as a \"sensitive-place\" law. In their view, \"sensitive places\" where the government may lawfully disarm law-abiding citizens include all \"places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.\" Brief for Respondents 34. It is true that people sometimes congregate in \"sensitive places,\" and it is likewise true that law enforcement professionals are usually presumptively available in those locations. But expanding the category of \"sensitive places\" simply to all places of public congregation that are not isolated from law enforcement defines the category of \"sensitive places\" far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. See Part III–B, infra. Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a \"sensitive place\" simply because it is crowded and protected generally by the New York City Police Department. Like Heller, we \"do not undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment.\" 554 U. S., at 626. And we acknowledge that \"applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins.\" Heller v. District of Columbia, 670 F. 3d 1244, 1275 (CADC 2011) (Kavanaugh, J., dissenting). \"But that is hardly unique to the Second Amendment. It is an essential component of judicial decision-making under our enduring Constitution.\" Ibid. We see no reason why judges frequently tasked with answering these kinds of historical, analogical questions cannot do the same for Second Amendment claims. III Having made the constitutional standard endorsed in Heller more explicit, we now apply that standard to New York’s proper-cause requirement. A It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of \"the people\" whom the Second Amendment protects. See Heller, 554 U. S., at 580. Nor does any party dispute that handguns are weapons \"in common use\" today for self-defense. See id., at 627; see also Caetano, 577 U. S., at 411–412. We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. We have little difficulty concluding that it does. Respondents do not dispute this. See Brief for Respondents 19. Nor could they. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms. As we explained in Heller, the \"textual elements\" of the Second Amendment’s operative clause— \"the right of the people to keep and bear Arms, shall not be infringed\"—\"guarantee the individual right to possess and carry weapons in case of confrontation.\" 554 U. S., at 592. Heller further confirmed that the right to \"bear arms\" refers to the right to \"wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.\" Id., at 584 (quoting Muscarello v. United States, 524 U. S. 125, 143 (1998) (Ginsburg, J., dissenting); internal quotation marks omitted). This definition of \"bear\" naturally encompasses public carry. Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table. Although individuals often \"keep\" firearms in their home, at the ready for self-defense, most do not \"bear\" (i.e., carry) them in the home beyond moments of actual confrontation. To confine the right to \"bear\" arms to the home would nullify half of the Second Amendment’s operative protections. Moreover, confining the right to \"bear\" arms to the home would make little sense given that self-defense is \"the central component of the [Second Amendment] right itself.\" Heller, 554 U. S., at 599; see also McDonald, 561 U. S., at 767. After all, the Second Amendment guarantees an \"individual right to possess and carry weapons in case of confrontation,\" Heller, 554 U. S., at 592, and confrontation can surely take place outside the home. Although we remarked in Heller that the need for armed self-defense is perhaps \"most acute\" in the home, id., at 628, we did not suggest that the need was insignificant elsewhere. Many Americans hazard greater danger outside the home than in it. See Moore v. Madigan, 702 F. 3d 933, 937 (CA7 2012) (\"[A] Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower\"). The text of the Second Amendment reflects that reality. The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to \"bear\" arms in public for self-defense. B Conceding that the Second Amendment guarantees a general right to public carry, contra, Young, 992 F. 3d, at 813, respondents instead claim that the Amendment \"permits a State to condition handgun carrying in areas ‘frequented by the general public’ on a showing of a nonspeculative need for armed self-defense in those areas,\" Brief for Respondents 19 (citation omitted).8 To support that claim, the burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. Only if respondents carry that burden can they show that the pre-existing right codified in the Second Amendment, and made applicable to the States through the Fourteenth, does not protect petitioners’ proposed course of conduct. Respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. We categorize these periods as follows: (1) medieval to early modern England; (2) the American Colonies and the early Republic; (3) antebellum America; (4) Reconstruction; and (5) the late-19th and early-20th centuries. We categorize these historical sources because, when it comes to interpreting the Constitution, not all history is created equal. \"Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.\" Heller, 554 U. S., at 634–635 (emphasis added). The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates either date may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years. It is one thing for courts to \"reac[h] back to the 14th century\" for English practices that \"prevailed up to the ‘period immediately before and after the framing of the Constitution.’\" Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269, 311 (2008) (ROBERTS, C. J., dissenting). It is quite another to rely on an \"ancient\" practice that had become \"obsolete in England at the time of the adoption of the Constitution\" and never \"was acted upon or accepted in the colonies.\" Dimick v. Schiedt, 293 U. S. 474, 477 (1935). As with historical evidence generally, courts must be careful when assessing evidence concerning English common-law rights. The common law, of course, developed over time. Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519, 533, n. 28 (1983); see also Rogers v. Tennessee, 532 U. S. 451, 461 (2001). And English common-law practices and understandings at any given time in history cannot be indiscriminately attributed to the Framers of our own Constitution. Even \"the words of Magna Charta\"—foundational as they were to the rights of America’s forefathers—\"stood for very different things at the time of the separation of the American Colonies from what they represented originally\" in 1215. Hurtado v. California, 110 U. S. 516, 529 (1884). Sometimes, in interpreting our own Constitution, \"it [is] better not to go too far back into antiquity for the best securities of our liberties,\" Funk v. United States, 290 U. S. 371, 382 (1933), unless evidence shows that medieval law survived to become our Founders’ law. A long, unbroken line of common-law precedent stretching from Bracton to Blackstone is far more likely to be part of our law than a short-lived, 14th-century English practice. Similarly, we must also guard against giving post-enactment history more weight than it can rightly bear. It is that in Heller we reiterated that evidence of \"how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century\" represented a \"critical tool of constitutional interpretation.\" 554 U. S., at 605. We therefore examined \"a variety of legal and other sources to determine the public understanding of [the Second Amendment] after its . . . ratification.\" Ibid. And, in other contexts, we have explained that \"‘a regular course of practice’ can ‘liquidate & settle the meaning of ’ disputed or indeterminate ‘terms & phrases’\" in the Constitution. Chiafalo v. Washington, 591 U. S. ___, ___ (2020) (slip op., at 13) (quoting Letter from J. Madison to S. Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908)); see also, e.g., Houston Community College System v. Wilson, 595 U. S. ___, ___ (2022) (slip op., at 5) (same); The Federalist No. 37, p. 229 (C. Rossiter ed. 1961) (J. Madison); see generally C. Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001); W. Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019). In other words, we recognize that \"where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.\" NLRB v. Noel Canning, 573 U. S. 513, 572 (2014) (Scalia, J., concurring in judgment); see also Myers v. United States, 272 U. S. 52, 174 (1926); Printz v. United States, 521 U. S. 898, 905 (1997). But to the extent later history contradicts what the text says, the text controls. \"‘[L]iquidating’ indeterminacies in written laws is far removed from expanding or altering them.\" Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 13); see also Letter from J. Madison to N. Trist (Dec. 1831), in 9 Writings of James Madison 477 (G. Hunt ed. 1910). Thus, \"post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.\" Heller, 670 F. 3d, at 1274, n. 6 (Kavanaugh, J., dissenting); see also Espinoza v. Montana Dept. of Revenue, 591 U. S. ___, ___ (2020) (slip op., at 15). As we recognized in Heller itself, because post-Civil War discussions of the right to keep and bear arms \"took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.\" 554 U. S., at 614; cf. Sprint Communications Co., 554 U. S., at 312 (ROBERTS, C. J., dissenting) (\"The belated innovations of the mid- to late-19th-century courts come too late to provide insight into the meaning of [the Constitution in 1787]\"). And we made clear in Gamble that Heller’s interest in mid- to late-19th-century commentary was secondary. Heller considered this evidence \"only after surveying what it regarded as a wealth of authority for its reading—including the text of the Second Amendment and state constitutions.\" Gamble, 587 U. S., at ___ (majority opinion) (slip op., at 23). In other words, this 19th-century evidence was \"treated as mere confirmation of what the Court thought had already been established.\" Ibid. A final word on historical method: Strictly speaking, New York is bound to respect the right to keep and bear arms because of the Fourteenth Amendment, not the Second. See, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 250–251 (1833) (Bill of Rights applies only to the Federal Government). Nonetheless, we have made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government. See, e.g., Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (slip op., at 7); Timbs v. Indiana, 586 U. S. ___, ___–___ (2019) (slip op., at 2–3); Malloy v. Hogan, 378 U. S. 1, 10–11 (1964). And we have generally assumed that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791. See, e.g., Crawford v. Washington, 541 U. S. 36, 42–50 (2004) (Sixth Amendment); Virginia v. Moore, 553 U. S. 164, 168– 169 (2008) (Fourth Amendment); Nevada Comm’n on Ethics v. Carrigan, 564 U. S. 117, 122–125 (2011) (First Amendment). We also acknowledge that there is an ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government). See, e.g., A. Amar, The Bill of Rights: Creation and Reconstruction xiv, 223, 243 (1998); K. Lash, Re-Speaking the Bill of Rights: A New Doctrine of Incorporation (Jan. 15, 2021) (manuscript, at 2), https://papers.ssrn .com/sol3/papers.cfm?abstract_id=3766917 (\"When the people adopted the Fourteenth Amendment into existence, they readopted the original Bill of Rights, and did so in a manner that invested those original 1791 texts with new 1868 meanings\"). We need not address this issue today because, as we explain below, the public understanding of the right to keep and bear arms in both 1791 and 1868 was, for all relevant purposes, the same with respect to public carry. With these principles in mind, we turn to respondents’ historical evidence. Throughout modern Anglo-American history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms. But apart from a handful of late19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.9 We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. Under Heller’s text-and-history standard, the proper-cause requirement is therefore unconstitutional. 1 Respondents’ substantial reliance on English history and custom before the founding makes some sense given our statement in Heller that the Second Amendment \"codified a right ‘inherited from our English ancestors.’\" 554 U. S., at 599 (quoting Robertson v. Baldwin, 165 U. S. 275, 281 (1897)); see also Smith v. Alabama, 124 U. S. 465, 478 (1888). But this Court has long cautioned that the English common law \"is not to be taken in all respects to be that of America.\" Van Ness v. Pacard, 2 Pet. 137, 144 (1829) (Story, J., for the Court); see also Wheaton v. Peters, 8 Pet. 591, 659 (1834); Funk, 290 U. S., at 384. Thus, \"[t]he language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted,\" not as they existed in the Middle Ages. Ex parte Grossman, 267 U. S. 87, 108–109 (1925) (emphasis added); see also United States v. Reid, 12 How. 361, 363 (1852). We interpret the English history that respondents and the United States muster in light of these interpretive principles. We find that history ambiguous at best and see little reason to think that the Framers would have thought it applicable in the New World. It is not sufficiently probative to defend New York’s proper-cause requirement. To begin, respondents and their amici point to several medieval English regulations from as early as 1285 that they say indicate a longstanding tradition of restricting the public carry of firearms. See 13 Edw. 1, 102. The most prominent is the 1328 Statute of Northampton (or Statute), passed shortly after Edward II was deposed by force of arms and his son, Edward III, took the throne of a kingdom where \"tendency to turmoil and rebellion was everywhere apparent throughout the realm.\" N. Trenholme, The Risings in the English Monastic Towns in 1327, 6 Am. Hist. Rev. 650, 651 (1901). At the time, \"[b]ands of malefactors, knights as well as those of lesser degree, harried the country, committing assaults and murders,\" prompted by a more general \"spirit of insubordination\" that led to a \"decay in English national life.\" K. Vickers, England in the Later Middle Ages 107 (1926). The Statute of Northampton was, in part, \"a product of . . . the acute disorder that still plagued England.\" A. Verduyn, The Politics of Law and Order During the Years of Edward III, 108 Eng. Hist. Rev. 842, 850 (1993). It provided that, with some exceptions, Englishmen could not \"come before the King’s Justices, or other of the King’s Ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere, upon pain to forfeit their Armour to the King, and their Bodies to Prison at the King’s pleasure.\" 2 Edw. 3 c. 3 (1328). Respondents argue that the prohibition on \"rid[ing]\" or \"go[ing] . . . armed\" was a sweeping restriction on public carry of self-defense weapons that would ultimately be adopted in Colonial America and justify onerous public-carry regulations. Notwithstanding the ink the parties spill over this provision, the Statute of Northampton—at least as it was understood during the Middle Ages—has little bearing on the Second Amendment adopted in 1791. The Statute of Northampton was enacted nearly 20 years before the Black Death, more than 200 years before the birth of Shakespeare, more than 350 years before the Salem Witch Trials, more than 450 years before the ratification of the Constitution, and nearly 550 years before the adoption of the Fourteenth Amendment. The Statute’s prohibition on going or riding \"armed\" obviously did not contemplate handguns, given they did not appear in Europe until about the mid-1500s. See K. Chase, Firearms: A Global History to 1700, p. 61 (2003). Rather, it appears to have been centrally concerned with the wearing of armor. See, e.g., Calendar of the Close Rolls, Edward III, 1330–1333, p. 131 (Apr. 3, 1330) (H. Maxwell-Lyte ed. 1898); id., at 243 (May 28, 1331); id., Edward III, 1327– 1330, at 314 (Aug. 29, 1328) (1896). If it did apply beyond armor, it applied to such weapons as the \"launcegay,\" a 10- to 12-foot-long lightweight lance. See 7 Rich. 2 c. 13 (1383); 20 Rich. 2 c. 1 (1396). The Statute’s apparent focus on armor and, perhaps, weapons like launcegays makes sense given that armor and lances were generally worn or carried only when one intended to engage in lawful combat or—as most early violations of the Statute show—to breach the peace. See, e.g., Calendar of the Close Rolls, Edward III, 1327–1330, at 402 (July 7, 1328); id., Edward III, 1333–1337, at 695 (Aug. 18, 1336) (1898). Contrast these arms with daggers. In the medieval period, \"[a]lmost everyone carried a knife or a dagger in his belt.\" H. Peterson, Daggers and Fighting Knives of the Western World 12 (2001). While these knives were used by knights in warfare, \"[c]ivilians wore them for self-protection,\" among other things. Ibid. Respondents point to no evidence suggesting the Statute applied to the smaller medieval weapons that strike us as most analogous to modern handguns. When handguns were introduced in England during the Tudor and early Stuart eras, they did prompt royal efforts at suppression. For example, Henry VIII issued several proclamations decrying the proliferation of handguns, and Parliament passed several statutes restricting their possession. See, e.g., 6 Hen. 8 c. 13, §1 (1514); 25 Hen. 8 c. 17, §1 (1533); 33 Hen. 8 c. 6 (1541); Prohibiting Use of Handguns and Crossbows (Jan. 1537), in 1 Tudor Royal Proclamations 249 (P. Hughes & J. Larkin eds. 1964). But Henry VIII’s displeasure with handguns arose not primarily from concerns about their safety but rather their inefficacy. Henry VIII worried that handguns threatened Englishmen’s proficiency with the longbow—a weapon many believed was crucial to English military victories in the 1300s and 1400s, including the legendary English victories at Crécy and Agincourt. See R. Payne-Gallwey, The Crossbow 32, 34 (1903); L. Schwoerer, Gun Culture in Early Modern England 54 (2016) (Schwoerer). Similarly, James I considered small handguns—called dags—\"utterly unserviceable for defence, Militarie practise, or other lawful use.\" A Proclamation Against Steelets, Pocket Daggers, Pocket Dagges and Pistols (R. Barker printer 1616). But, in any event, James I’s proclamation in 1616 \"was the last one regarding civilians carrying dags,\" Schwoerer 63. \"After this the question faded without explanation.\" Ibid. So, by the time Englishmen began to arrive in America in the early 1600s, the public carry of handguns was no longer widely proscribed. When we look to the latter half of the 17th century, respondents’ case only weakens. As in Heller, we consider this history \"[b]etween the [Stuart] Restoration [in 1660] and the Glorious Revolution [in 1688]\" to be particularly instructive. 554 U. S., at 592. During that time, the Stuart Kings Charles II and James II ramped up efforts to disarm their political opponents, an experience that \"caused Englishmen . . . to be jealous of their arms.\" Id., at 593. In one notable example, the government charged Sir John Knight, a prominent detractor of James II, with violating the Statute of Northampton because he allegedly \"did walk about the streets armed with guns, and that he went into the church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King’s subjects.\" Sir John Knight’s Case, 3 Mod. 117, 87 Eng. Rep. 75, 76 (K. B. 1686). Chief Justice Herbert explained that the Statute of Northampton had \"almost gone in desuetudinem,\" Rex v. Sir John Knight, 1 Comb. 38, 38–39, 90 Eng. Rep. 330 (K. B. 1686), meaning that the Statute had largely become obsolete through disuse.10 And the Chief Justice further explained that the act of \"go[ing] armed to terrify the King’s subjects\" was \"a great offence at the common law\" and that the Statute of Northampton \"is but an affirmance of that law.\" 3 Mod., at 118, 87 Eng. Rep., at 76 (first emphasis added). Thus, one’s conduct \"will come within the Act,\"—i.e., would terrify the King’s subjects—only \"where the crime shall appear to be malo animo,\" 1 Comb., at 39, 90 Eng. Rep., at 330, with evil intent or malice. Knight was ultimately acquitted by the jury. Just three years later, Parliament responded by writing the \"predecessor to our Second Amendment\" into the 1689 English Bill of Rights, Heller, 554 U. S., at 593, guaranteeing that \"Protestants . . . may have Arms for their Defence suitable to their Conditions, and as allowed by Law,\" 1 Wm. & Mary c. 2, §7, in 3 Eng. Stat. at Large 417 (1689). Although this right was initially limited—it was restricted to Protestants and held only against the Crown, but not Parliament—it represented a watershed in English history. Englishmen had \"never before claimed . . . the right of the individual to arms.\" Schwoerer 156.12 And as that individual right matured, \"by the time of the founding,\" the right to keep and bear arms was \"understood to be an individual right protecting against both public and private violence.\" Heller, 554 U. S., at 594. To be sure, the Statute of Northampton survived both Sir John Knight’s Case and the English Bill of Rights, but it was no obstacle to public carry for self-defense in the decades leading to the founding. Serjeant William Hawkins, in his widely read 1716 treatise, confirmed that \"no wearing of Arms is within the meaning of [the Statute of Northampton], unless it be accompanied with such Circumstances as are apt to terrify the People.\" 1 Pleas of the Crown 136. To illustrate that proposition, Hawkins noted as an example that \"Persons of Quality\" were \"in no Danger of Offending against this Statute by wearing common Weapons\" because, in those circumstances, it would be clear that they had no \"Intention to commit any Act of Violence or Disturbance of the Peace.\" Ibid.; see also T. Barlow, The Justice of Peace 12 (1745). Respondents do not offer any evidence showing that, in the early 18th century or after, the mere public carrying of a handgun would terrify people. In fact, the opposite seems to have been true. As time went on, \"domestic gun culture [in England] softened\" any \"terror\" that firearms might once have conveyed. Schwoerer 4. Thus, whatever place handguns had in English society during the Tudor and Stuart reigns, by the time we reach the 18th century—and near the founding—they had gained a fairly secure footing in English culture. At the very least, we cannot conclude from this historical record that, by the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some special need for self-protection. 2 Respondents next point us to the history of the Colonies and early Republic, but there is little evidence of an early American practice of regulating public carry by the general public. This should come as no surprise—English subjects founded the Colonies at about the time England had itself begun to eliminate restrictions on the ownership and use of handguns. In the colonial era, respondents point to only three restrictions on public carry. For starters, we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation. In any event, even looking at these laws on their own terms, we are not convinced that they regulated public carry akin to the New York law before us. Two of the statutes were substantively identical. Colonial Massachusetts and New Hampshire both authorized justices of the peace to arrest \"all Affrayers, Rioters, Disturbers, or Breakers of the Peace, and such as shall ride or go armed Offensively . . . by Night or by Day, in Fear or Affray of Their Majesties Liege People.\" 1692 Mass. Acts and Laws no. 6, pp. 11–12; see 1699 N. H. Acts and Laws ch. 1. Respondents and their amici contend that being \"armed offensively\" meant bearing any offensive weapons, including firearms. See Brief for Respondents 33. In particular, respondents’ amici argue that \"‘offensive’\" arms in the 1600s and 1700s were what Blackstone and others referred to as \"‘dangerous or unusual weapons,’\" Brief for Professors of History and Law as Amici Curiae 7 (quoting 4 Blackstone, Commentaries, at 148–149), a category that they say included firearms, see also post, at 40–42 (BREYER, J., dissenting). Respondents, their amici, and the dissent all misunderstand these statutes. Far from banning the carrying of any class of firearms, they merely codified the existing common-law offense of bearing arms to terrorize the people, as had the Statute of Northampton itself. See supra, at 34–37. For instance, the Massachusetts statute proscribed \"go[ing] armed Offensively . . . in Fear or Affray\" of the people, indicating that these laws were modeled after the Statute of Northampton to the extent that the statute would have been understood to limit public carry in the late 1600s. Moreover, it makes very little sense to read these statutes as banning the public carry of all firearms just a few years after Chief Justice Herbert in Sir John Knight’s Case indicated that the English common law did not do so. Regardless, even if respondents’ reading of these colonial statutes were correct, it would still do little to support restrictions on the public carry of handguns today. At most, respondents can show that colonial legislatures sometimes prohibited the carrying of \"dangerous and unusual weapons\"—a fact we already acknowledged in Heller. See 554 U. S., at 627. Drawing from this historical tradition, we explained there that the Second Amendment protects only the carrying of weapons that are those \"in common use at the time,\" as opposed to those that \"are highly unusual in society at large.\" Ibid. (internal quotation marks omitted). Whatever the likelihood that handguns were considered \"dangerous and unusual\" during the colonial period, they are indisputably in \"common use\" for self-defense today. They are, in fact, \"the quintessential self-defense weapon.\" Id., at 629. Thus, even if these colonial laws prohibited the carrying of handguns because they were considered \"dangerous and unusual weapons\" in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today. The third statute invoked by respondents was enacted in East New Jersey in 1686. It prohibited the concealed carry of \"pocket pistol[s]\" or other \"unusual or unlawful weapons,\" and it further prohibited \"planter[s]\" from carrying all pistols unless in military service or, if \"strangers,\" when traveling through the Province. An Act Against Wearing Swords, &c., ch. 9, in Grants, Concessions, and Original Constitutions of the Province of New Jersey 290 (2d ed. 1881) (Grants and Concessions). These restrictions do not meaningfully support respondents. The law restricted only concealed carry, not all public carry, and its restrictions applied only to certain \"unusual or unlawful weapons,\" including \"pocket pistol[s].\" Ibid. It also did not apply to all pistols, let alone all firearms. \"Pocket pistols\" had barrel lengths of perhaps 3 or 4 inches, far smaller than the 6-inch to 14-inch barrels found on the other belt and hip pistols that were commonly used for lawful purposes in the 1600s. J. George, English Pistols and Revolvers 16 (1938); see also, e.g., 14 Car. 2 c. 3, §20 (1662); H. Peterson, Arms and Armor in Colonial America, 1526–1783, p. 208 (1956) (Peterson). Moreover, the law prohibited only the concealed carry of pocket pistols; it presumably did not by its terms touch open carry of larger, presumably more common pistols, except as to \"planters.\"13 In colonial times, a \"planter\" was simply a farmer or plantation owner who settled new territory. R. Lederer, Colonial American English 175 (1985); New Jersey State Archives, J. Klett, Using the Records of the East and West Jersey Proprietors 31 (rev. ed. 2014), https://www.nj.gov/state/archives/pdf/proprietors.pdf. While the reason behind this singular restriction is not entirely clear, planters may have been targeted because colonial-era East New Jersey was riven with \"strife and excitement\" between planters and the Colony’s proprietors \"respecting titles to the soil.\" See W. Whitehead, East Jersey Under the Proprietary Governments 150–151 (rev. 2d ed. 1875); see also T. Gordon, The History of New Jersey 49 (1834). In any event, we cannot put meaningful weight on this solitary statute. First, although the \"planter\" restriction may have prohibited the public carry of pistols, it did not prohibit planters from carrying long guns for self-defense— including the popular musket and carbine. See Peterson 41. Second, it does not appear that the statute survived for very long. By 1694, East New Jersey provided that no slave \"be permitted to carry any gun or pistol . . . into the woods, or plantations\" unless their owner accompanied them. Grants and Concessions 341. If slave-owning planters were prohibited from carrying pistols, it is hard to comprehend why slaves would have been able to carry them in the planter’s presence. Moreover, there is no evidence that the 1686 statute survived the 1702 merger of East and West New Jersey. See 1 Nevill, Acts of the General Assembly of the Province of New-Jersey (1752). At most eight years of history in half a Colony roughly a century before the founding sheds little light on how to properly interpret the Second Amendment. Respondents next direct our attention to three late-18thcentury and early-19th-century statutes, but each parallels the colonial statutes already discussed. One 1786 Virginia statute provided that \"no man, great nor small, [shall] go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country.\" Collection of All Such Acts of the General Assembly of Virginia ch. 21, p. 33 (1794).14 A Massachusetts statute from 1795 commanded justices of the peace to arrest \"all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth.\" 1795 Mass. Acts and Laws ch. 2, p. 436, in Laws of the Commonwealth of Massachusetts. And an 1801 Tennessee statute likewise required any person who would \"publicly ride or go armed to the terror of the people, or privately carry any dirk, large knife, pistol or any other dangerous weapon, to the fear or terror of any person\" to post a surety; otherwise, his continued violation of the law would be \"punished as for a breach of the peace, or riot at common law.\" 1801 Tenn. Acts pp. 260–261. A by-now-familiar thread runs through these three statutes: They prohibit bearing arms in a way that spreads \"fear\" or \"terror\" among the people. As we have already explained, Chief Justice Herbert in Sir John Knight’s Case interpreted this in Terrorem Populi element to require something more than merely carrying a firearm in public. See supra, at 34–35. Respondents give us no reason to think that the founding generation held a different view. Thus, all told, in the century leading up to the Second Amendment and in the first decade after its adoption, there is no historical basis for concluding that the pre-existing right enshrined in the Second Amendment permitted broad prohibitions on all forms of public carry. 3 Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate. Respondents rely heavily on these restrictions, which generally fell into three categories: common-law offenses, statutory prohibitions, and \"surety\" statutes. None of these restrictions imposed a substantial burden on public carry analogous to the burden created by New York’s restrictive licensing regime. Common-Law Offenses. As during the colonial and founding periods, the common-law offenses of \"affray\" or going armed \"to the terror of the people\" continued to impose some limits on firearm carry in the antebellum period. But as with the earlier periods, there is no evidence indicating that these common-law limitations impaired the right of the general population to peaceable public carry. For example, the Tennessee attorney general once charged a defendant with the common-law offense of affray, arguing that the man committed the crime when he \"‘arm[ed] himself with dangerous and unusual weapons, in such a manner as will naturally cause terror to the people.’\" Simpson v. State, 13 Tenn. 356, 358 (1833). More specifically, the indictment charged that Simpson \"with force and arms being arrayed in a warlike manner . . . unlawfully, and to the great terror and disturbance of divers good citizens, did make an affray.\" Id., at 361. The Tennessee Supreme Court quashed the indictment, holding that the Statute of Northampton was never part of Tennessee law. Id., at 359. But even assuming that Tennesseans’ ancestors brought with them the common law associated with the Statute, the Simpson court found that if the Statute had made, as an \"independent ground of affray,\" the mere arming of oneself with firearms, the Tennessee Constitution’s Second Amendment analogue had \"completely abrogated it.\" Id., at 360. At least in light of that constitutional guarantee, the court did not think that it could attribute to the mere carrying of arms \"a necessarily consequent operation as terror to the people.\" Ibid. Perhaps more telling was the North Carolina Supreme Court’s decision in State v. Huntly, 25 N. C. 418 (1843) (per curiam). Unlike the Tennessee Supreme Court in Simpson, the Huntly court held that the common-law offense codified by the Statute of Northampton was part of the State’s law. See 25 N. C., at 421–422. However, consistent with the Statute’s long-settled interpretation, the North Carolina Supreme Court acknowledged \"that the carrying of a gun\" for a lawful purpose \"per se constitutes no offence.\" Id., at 422–423. Only carrying for a \"wicked purpose\" with a \"mischievous result . . . constitute[d a] crime.\" Id., at 423; see also J. Haywood, The Duty and Office of Justices of Peace 10 (1800); H. Potter, The Office and Duties of a Justice of the Peace 39 (1816).15 Other state courts likewise recognized that the common law did not punish the carrying of deadly weapons per se, but only the carrying of such weapons \"for the purpose of an affray, and in such manner as to strike terror to the people.\" O’Neil v. State, 16 Ala. 65, 67 (1849). Therefore, those who sought to carry firearms publicly and peaceably in antebellum America were generally free to do so. Statutory Prohibitions. In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. As we recognized in Heller, \"the majority of the 19th-century courts to consider the question held that [these] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.\" 554 U. S., at 626. Respondents unsurprisingly cite these statutes16—and decisions upholding them17—as evidence that States were historically free to ban public carry. In fact, however, the history reveals a consensus that States could not ban public carry altogether. Respondents’ cited opinions agreed that concealed-carry prohibitions were constitutional only if they did not similarly prohibit open carry. That was true in Alabama. See State v. Reid, 1 Ala. 612, 616, 619–621 (1840).18 It was also true in Louisiana. See State v. Chandler, 5 La. 489, 490 (1850).19 Kentucky, meanwhile, went one step further—the State Supreme Court invalidated a concealed-carry prohibition. See Bliss v. Commonwealth, 12 Ky. 90 (1822).20 The Georgia Supreme Court’s decision in Nunn v. State, 1 Ga. 243 (1846), is particularly instructive. Georgia’s 1837 statute broadly prohibited \"wearing\" or \"carrying\" pistols \"as arms of offence or defence,\" without distinguishing between concealed and open carry. 1837 Ga. Acts 90, §1. To the extent the 1837 Act prohibited \"carrying certain weapons secretly,\" the court explained, it was \"valid.\" Nunn, 1 Ga., at 251. But to the extent the Act also prohibited \"bearing arms openly,\" the court went on, it was \"in conflict with the Constitutio[n] and void.\" Ibid.; see also Heller, 554 U. S., at 612. The Georgia Supreme Court’s treatment of the State’s general prohibition on the public carriage of handguns indicates that it was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry. Finally, we agree that Tennessee’s prohibition on carrying \"publicly or privately\" any \"belt or pocket pisto[l],\" 1821 Tenn. Acts ch. 13, p. 15, was, on its face, uniquely severe, see Heller, 554 U. S., at 629. That said, when the Tennessee Supreme Court addressed the constitutionality of a substantively identical successor provision, see 1870 Tenn. Acts ch. 13, §1, p. 28, the court read this language to permit the public carry of larger, military-style pistols because any categorical prohibition on their carry would \"violat[e] the constitutional right to keep arms.\" Andrews v. State, 50 Tenn. 165, 187 (1871); see also Heller, 554 U. S., at 629 (discussing Andrews).21 All told, these antebellum state-court decisions evince a consensus view that States could not altogether prohibit the public carry of \"arms\" protected by the Second Amendment or state analogues. Surety Statutes. In the mid-19th century, many jurisdictions began adopting surety statutes that required certain individuals to post bond before carrying weapons in public. Although respondents seize on these laws to justify the proper-cause restriction, their reliance on them is misplaced. These laws were not bans on public carry, and they typically targeted only those threatening to do harm. As discussed earlier, Massachusetts had prohibited riding or going \"armed offensively, to the fear or terror of the good citizens of this Commonwealth\" since 1795. 1795 Mass. Acts and Laws ch. 2, at 436, in Laws of the Commonwealth of Massachusetts. In 1836, Massachusetts enacted a new law providing: \"If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.\" Mass. Rev. Stat., ch. 134, §16. In short, the Commonwealth required any person who was reasonably likely to \"breach the peace,\" and who, standing accused, could not prove a special need for self-defense, to post a bond before publicly carrying a firearm. Between 1838 and 1871, nine other jurisdictions adopted variants of the Massachusetts law.23 Contrary to respondents’ position, these \"reasonable-cause laws\" in no way represented the \"direct precursor\" to the proper-cause requirement. Brief for Respondents 27. While New York presumes that individuals have no public carry right without a showing of heightened need, the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of \"reasonable cause to fear an injury, or breach of the peace.\" Mass. Rev. Stat., ch. 134, §16 (1836).24 As William Rawle explained in an influential treatise, an individual’s carrying of arms was \"sufficient cause to require him to give surety of the peace\" only when \"attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them.\" A View of the Constitution of the United States of America 126 (2d ed. 1829). Then, even on such a showing, the surety laws did not prohibit public carry in locations frequented by the general community. Rather, an accused arms-bearer \"could go on carrying without criminal penalty\" so long as he \"post[ed] money that would be forfeited if he breached the peace or injured others—a requirement from which he was exempt if he needed self-defense.\" Wrenn, 864 F. 3d, at 661. Thus, unlike New York’s regime, a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace. And, even then, proving special need simply avoided a fee rather than a ban. All told, therefore, \"[u]nder surety laws. . . everyone started out with robust carrying rights\" and only those reasonably accused were required to show a special need in order to avoid posting a bond. Ibid. These antebellum special-need requirements \"did not expand carrying for the responsible; it shrank burdens on carrying by the (allegedly) reckless.\" Ibid. One Court of Appeals has nonetheless remarked that these surety laws were \"a severe constraint on anyone thinking of carrying a weapon in public.\" Young, 992 F. 3d, at 820. That contention has little support in the historical record. Respondents cite no evidence showing the average size of surety postings. And given that surety laws were \"intended merely for prevention\" and were \"not meant as any degree of punishment,\" 4 Blackstone, Commentaries, at 249, the burden these surety statutes may have had on the right to public carry was likely too insignificant to shed light on New York’s proper-cause standard—a violation of which can carry a 4-year prison term or a $5,000 fine. In Heller, we noted that founding-era laws punishing unlawful discharge \"with a small fine and forfeiture of the weapon . . . , not with significant criminal penalties,\" likely did not \"preven[t] a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him.\" 554 U. S., at 633–634. Similarly, we have little reason to think that the hypothetical possibility of posting a bond would have prevented anyone from carrying a firearm for self-defense in the 19th century. Besides, respondents offer little evidence that authorities ever enforced surety laws. The only recorded case that we know of involved a justice of the peace declining to require a surety, even when the complainant alleged that the arms-bearer \"‘did threaten to beat, wou[n]d, mai[m], and kill’\" him. Brief for Professor Robert Leider et al. as Amici Curiae 31 (quoting Grover v. Bullock, No. 185 (Worcester Cty., Aug. 13, 1853)); see E. Ruben & S. Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L. J. Forum 121, 130, n. 53 (2015). And one scholar who canvassed 19th-century newspapers— which routinely reported on local judicial matters—found only a handful of other examples in Massachusetts and the District of Columbia, all involving black defendants who may have been targeted for selective or pretextual enforcement. See R. Leider, Constitutional Liquidation, Surety Laws, and the Right To Bear Arms 15–17, in New Histories of Gun Rights and Regulation (J. Blocher, J. Charles, & D. Miller eds.) (forthcoming); see also Brief for Professor Robert Leider et al. as Amici Curiae 31–32. That is surely too slender a reed on which to hang a historical tradition of restricting the right to public carry.25 Respondents also argue that surety statutes were severe restrictions on firearms because the \"reasonable cause to fear\" standard was essentially pro forma, given that \"merely carrying firearms in populous areas breached the peace\" per se. Brief for Respondents 27. But that is a counterintuitive reading of the language that the surety statutes actually used. If the mere carrying of handguns breached the peace, it would be odd to draft a surety statute requiring a complainant to demonstrate \"reasonable cause to fear an injury, or breach of the peace,\" Mass. Rev. Stat., ch. 134, §16, rather than a reasonable likelihood that the arms-bearer carried a covered weapon. After all, if it was the nature of the weapon rather than the manner of carry that was dispositive, then the \"reasonable fear\" requirement would be redundant. Moreover, the overlapping scope of surety statutes and criminal statutes suggests that the former were not viewed as substantial restrictions on public carry. For example, when Massachusetts enacted its surety statute in 1836, it reaffirmed its 1794 criminal prohibition on \"go[ing] armed offensively, to the terror of the people.\" Mass. Rev. Stat., ch. 85, §24. And Massachusetts continued to criminalize the carrying of various \"dangerous weapons\" well after passing the 1836 surety statute. See, e.g., 1850 Mass. Acts ch. 194, §1, p. 401; Mass. Gen. Stat., ch. 164, §10 (1860). Similarly, Virginia had criminalized the concealed carry of pistols since 1838, see 1838 Va. Acts ch. 101, §1, nearly a decade before it enacted its surety statute, see 1847 Va. Acts ch. 14, §16. It is unlikely that these surety statutes constituted a \"severe\" restraint on public carry, let alone a restriction tantamount to a ban, when they were supplemented by direct criminal prohibitions on specific weapons and methods of carry. To summarize: The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation. Under the common law, individuals could not carry deadly weapons in a manner likely to terrorize others. Similarly, although surety statutes did not directly restrict public carry, they did provide financial incentives for responsible arms carrying. Finally, States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly. None of these historical limitations on the right to bear arms approach New York’s proper-cause requirement because none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose. 4 Evidence from around the adoption of the Fourteenth Amendment also fails to support respondents’ position. For the most part, respondents and the United States ignore the \"outpouring of discussion of the [right to keep and bear arms] in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves\" after the Civil War. Heller, 554 U. S., at 614. Of course, we are not obliged to sift the historical materials for evidence to sustain New York’s statute. That is respondents’ burden. Nevertheless, we think a short review of the public discourse surrounding Reconstruction is useful in demonstrating how public carry for self-defense remained a central component of the protection that the Fourteenth Amendment secured for all citizens. A short prologue is in order. Even before the Civil War commenced in 1861, this Court indirectly affirmed the importance of the right to keep and bear arms in public. Writing for the Court in Dred Scott v. Sandford, 19 How. 393 (1857), Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right \"to keep and carry arms wherever they went.\" Id., at 417 (emphasis added). Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America. After the Civil War, of course, the exercise of this fundamental right by freed slaves was systematically thwarted. This Court has already recounted some of the Southern abuses violating blacks’ right to keep and bear arms. See McDonald, 561 U. S., at 771 (noting the \"systematic efforts\" made to disarm blacks); id., at 845–847 (THOMAS, J., concurring in part and concurring in judgment); see also S. Exec. Doc. No. 43, 39th Cong., 1st Sess., 8 (1866) (\"Pistols, old muskets, and shotguns were taken away from [freed slaves] as such weapons would be wrested from the hands of lunatics\"). In the years before the 39th Congress proposed the Fourteenth Amendment, the Freedmen’s Bureau regularly kept it abreast of the dangers to blacks and Union men in the postbellum South. The reports described how blacks used publicly carried weapons to defend themselves and their communities. For example, the Bureau reported that a teacher from a Freedmen’s school in Maryland had written to say that, because of attacks on the school, \"[b]oth the mayor and sheriff have warned the colored people to go armed to school, (which they do,)\" and that the \"[t]he superintendent of schools came down and brought [the teacher] a revolver\" for his protection. Cong. Globe, 39th Cong., 1st Sess., 658 (1866); see also H. R. Exec. Doc. No. 68, 39th Cong., 2d Sess., 91 (1867) (noting how, during the New Orleans riots, blacks under attack \"defended themselves . . . with such pistols as they had\"). Witnesses before the Joint Committee on Reconstruction also described the depredations visited on Southern blacks, and the efforts they made to defend themselves. One Virginia music professor related that when \"[t]wo Union men were attacked . . . they drew their revolvers and held their assailants at bay.\" H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 110 (1866). An assistant commissioner to the Bureau from Alabama similarly reported that men were \"robbing and disarming negroes upon the highway,\" H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 297 (1866), indicating that blacks indeed carried arms publicly for their self-protection, even if not always with success. See also H. R. Exec. Doc. No. 329, 40th Cong., 2d Sess., 41 (1868) (describing a Ku Klux Klan outfit that rode \"through the country. . . robbing every one they come across of money, pistols, papers, &c.\"); id., at 36 (noting how a black man in Tennessee had been murdered on his way to get book subscriptions, with the murderer taking, among other things, the man’s pistol). Blacks had \"procured great numbers of old army muskets and revolvers, particularly in Texas,\" and \"employed them to protect themselves\" with \"vigor and audacity.\" S. Exec. Doc. No. 43, 39th Cong., 1st Sess., at 8. Seeing that government was inadequately protecting them, \"there [was] the strongest desire on the part of the freedmen to secure arms, revolvers particularly.\" H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 3, at 102. On July 6, 1868, Congress extended the 1866 Freedmen’s Bureau Act, see 15 Stat. 83, and reaffirmed that freedmen were entitled to the \"full and equal benefit of all laws and proceedings concerning personal liberty [and] personal security . . . including the constitutional right to keep and bear arms.\" §14, 14 Stat. 176 (1866) (emphasis added). That same day, a Bureau official reported that freedmen in Kentucky and Tennessee were still constantly under threat: \"No Union man or negro who attempts to take any active part in politics, or the improvement of his race, is safe a single day; and nearly all sleep upon their arms at night and carry concealed weapons during the day.\" H. R. Exec. Doc. No. 329, 40th Cong., 2d Sess., at 40. Of course, even during Reconstruction the right to keep and bear arms had limits. But those limits were consistent with a right of the public to peaceably carry handguns for self-defense. For instance, when General D. E. Sickles issued a decree in 1866 pre-empting South Carolina’s Black Codes—which prohibited firearm possession by blacks—he stated: \"The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed; nevertheless this shall not be construed to sanction the unlawful practice of carrying concealed weapons. . . . And no disorderly person, vagrant, or disturber of the peace, shall be allowed to bear arms.\" Cong. Globe, 39th Cong., 1st Sess., at 908–909; see also McDonald, 561 U. S., at 847–848 (opinion of THOMAS, J.).26 Around the same time, the editors of The Loyal Georgian, a prominent black-owned newspaper, were asked by \"A Colored Citizen\" whether \"colored persons [have] a right to own and carry fire arms.\" The editors responded that blacks had \"the same right to own and carry fire arms that other citizens have.\" The Loyal Georgian, Feb. 3, 1866, p. 3, col. 4. And, borrowing language from a Freedmen’s Bureau circular, the editors maintained that \"[a]ny person, white or black, may be disarmed if convicted of making an improper or dangerous use of weapons,\" even though \"no military or civil officer has the right or authority to disarm any class of people, thereby placing them at the mercy of others.\" Ibid. (quoting Circular No. 5, Freedmen’s Bureau, Dec. 22, 1865); see also McDonald, 561 U. S., at 848–849 (opinion of THOMAS, J.). As for Reconstruction-era state regulations, there was little innovation over the kinds of public-carry restrictions that had been commonplace in the early 19th century. For instance, South Carolina in 1870 authorized the arrest of \"all who go armed offensively, to the terror of the people,\" 1870 S. C. Acts p. 403, no. 288, §4, parroting earlier statutes that codified the common-law offense. That same year, after it cleaved from Virginia, West Virginia enacted a surety statute nearly identical to the one it inherited from Virginia. See W. Va. Code, ch. 153, §8. Also in 1870, Tennessee essentially reenacted its 1821 prohibition on the public carry of handguns but, as explained above, Tennessee courts interpreted that statute to exempt large pistols suitable for military use. See supra, at 46. Respondents and the United States, however, direct our attention primarily to two late-19th-century cases in Texas. In 1871, Texas law forbade anyone from \"carrying on or about his person . . . any pistol . . . unless he has reasonable grounds for fearing an unlawful attack on his person.\" 1871 Tex. Gen. Laws §1. The Texas Supreme Court upheld that restriction in English v. State, 35 Tex. 473 (1871). The Court reasoned that the Second Amendment, and the State’s constitutional analogue, protected only those arms \"as are useful and proper to an armed militia,\" including holster pistols, but not other kinds of handguns. Id., at 474–475. Beyond that constitutional holding, the English court further opined that the law was not \"contrary to public policy,\" id., at 479, given that it \"ma[de] all necessary exceptions\" allowing deadly weapons to \"be carried as means of self-defense,\" and therefore \"fully cover[ed] all wants of society,\" id., at 477. Four years later, in State v. Duke, 42 Tex. 455 (1875), the Texas Supreme Court modified its analysis. The court reinterpreted Texas’ State Constitution to protect not only military-style weapons but rather all arms \"as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense.\" Id., at 458. On that understanding, the court recognized that, in addition to \"holster pistol[s],\" the right to bear arms covered the carry of \"such pistols at least as are not adapted to being carried concealed.\" Id., at 458–459. Nonetheless, after expanding the scope of firearms that warranted state constitutional protection, Duke held that requiring any pistol-bearer to have \"‘reasonable grounds fearing an unlawful attack on [one’s] person’\" was a \"legitimate and highly proper\" regulation of handgun carriage. Id., at 456, 459– 460. Duke thus concluded that the 1871 statute \"appear[ed] to have respected the right to carry a pistol openly when needed for self-defense.\" Id., at 459. We acknowledge that the Texas cases support New York’s proper-cause requirement, which one can analogize to Texas’ \"reasonable grounds\" standard. But the Texas statute, and the rationales set forth in English and Duke, are outliers. In fact, only one other State, West Virginia, adopted a similar public-carry statute before 1900. See W. Va. Code, ch. 148, §7 (1887). The West Virginia Supreme Court upheld that prohibition, reasoning that no handguns of any kind were protected by the Second Amendment, a rationale endorsed by no other court during this period. See State v. Workman, 35 W. Va. 367, 371–374, 14 S. E. 9, 11 (1891). The Texas decisions therefore provide little insight into how postbellum courts viewed the right to carry protected arms in public. In the end, while we recognize the support that postbellum Texas provides for respondents’ view, we will not give disproportionate weight to a single state statute and a pair of state-court decisions. As in Heller, we will not \"stake our interpretation of the Second Amendment upon a single law, in effect in a single [State], that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense\" in public. 554 U. S., at 632. 5 Finally, respondents point to the slight uptick in gun regulation during the late-19th century—principally in the Western Territories. As we suggested in Heller, however, late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence. See id., at 614; supra, at 28.28 Here, moreover, respondents’ reliance on late-19th-century laws has several serious flaws even beyond their temporal distance from the founding. The vast majority of the statutes that respondents invoke come from the Western Territories. Two Territories prohibited the carry of pistols in towns, cities, and villages, but seemingly permitted the carry of rifles and other long guns everywhere. See 1889 Ariz. Terr. Sess. Laws no. 13, §1, p. 16; 1869 N. M. Laws ch. 32, §§1–2, p. 72.29 Two others prohibited the carry of all firearms in towns, cities, and villages, including long guns. See 1875 Wyo. Terr. Sess. Laws ch. 52, §1; 1889 Idaho Terr. Gen. Laws §1, p. 23. And one Territory completely prohibited public carry of pistols everywhere, but allowed the carry of \"shot-guns or rifles\" for certain purposes. See 1890 Okla. Terr. Stats., Art. 47, §§1– 2, 5, p. 495. These territorial restrictions fail to justify New York’s proper-cause requirement for several reasons. First, the bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry. For starters, \"[t]he very transitional and temporary character of the American [territorial] system\" often \"permitted legislative improvisations which might not have been tolerated in a permanent setup.\" E. Pomeroy, The Territories and the United States 1861–1890, p. 4 (1947). These territorial \"legislative improvisations,\" which conflict with the Nation’s earlier approach to firearm regulation, are most unlikely to reflect \"the origins and continuing significance of the Second Amendment\" and we do not consider them \"instructive.\" Heller, 554 U. S., at 614. The exceptional nature of these western restrictions is all the more apparent when one considers the miniscule territorial populations who would have lived under them. To put that point into perspective, one need not look further than the 1890 census. Roughly 62 million people lived in the United States at that time. Arizona, Idaho, New Mexico, Oklahoma, and Wyoming combined to account for only 420,000 of those inhabitants—about two-thirds of 1% of the population. See Dept. of Interior, Compendium of the Eleventh Census: 1890, Part I.–Population 2 (1892). Put simply, these western restrictions were irrelevant to more than 99% of the American population. We have already explained that we will not stake our interpretation of the Second Amendment upon a law in effect in a single State, or a single city, \"that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms\" in public for self-defense. Heller, 554 U. S., at 632; see supra, at 57–58. Similarly, we will not stake our interpretation on a handful of temporary territorial laws that were enacted nearly a century after the Second Amendment’s adoption, governed less than 1% of the American population, and also \"contradic[t] the overwhelming weight\" of other, more contemporaneous historical evidence. Heller, 554 U. S., at 632. Second, because these territorial laws were rarely subject to judicial scrutiny, we do not know the basis of their perceived legality. When States generally prohibited both open and concealed carry of handguns in the late-19th century, state courts usually upheld the restrictions when they exempted army revolvers, or read the laws to exempt at least that category of weapons. See, e.g., Haile v. State, 38 Ark. 564, 567 (1882); Wilson v. State, 33 Ark. 557, 560 (1878); Fife v. State, 31 Ark. 455, 461 (1876); State v. Wilburn, 66 Tenn. 57, 60 (1872); Andrews, 50 Tenn., at 187.30 Those state courts that upheld broader prohibitions without qualification generally operated under a fundamental misunderstanding of the right to bear arms, as expressed in Heller. For example, the Kansas Supreme Court upheld a complete ban on public carry enacted by the city of Salina in 1901 based on the rationale that the Second Amendment protects only \"the right to bear arms as a member of the state militia, or some other military organization provided for by law.\" Salina v. Blaksley, 72 Kan. 230, 232, 83 P. 619, 620 (1905). That was clearly erroneous. See Heller, 554 U. S., at 592. Absent any evidence explaining why these unprecedented prohibitions on all public carry were understood to comport with the Second Amendment, we fail to see how they inform \"the origins and continuing significance of the Amendment.\" Id., at 614; see also The Federalist No. 37, at 229 (explaining that the meaning of ambiguous constitutional provisions can be \"liquidated and ascertained by a series of particular discussions and adjudications\" (emphasis added)). Finally, these territorial restrictions deserve little weight because they were—consistent with the transitory nature of territorial government—short lived. Some were held unconstitutional shortly after passage. See In re Brickey, 8 Idaho 597, 70 P. 609 (1902). Others did not survive a Territory’s admission to the Union as a State. See Wyo. Rev. Stat., ch. 3, §5051 (1899) (1890 law enacted upon statehood prohibiting public carry only when combined with \"intent, or avowed purpose, of injuring [one’s] fellow-man\"). Thus, they appear more as passing regulatory efforts by not-yet-mature jurisdictions on the way to statehood, rather than part of an enduring American tradition of state regulation. Beyond these Territories, respondents identify one Western State—Kansas—that instructed cities with more than 15,000 inhabitants to pass ordinances prohibiting the public carry of firearms. See 1881 Kan. Sess. Laws §§1, 23, pp. 79, 92.31 By 1890, the only cities meeting the population threshold were Kansas City, Topeka, and Wichita. See Compendium of the Eleventh Census: 1890, at 442–452. Even if each of these three cities enacted prohibitions by 1890, their combined population (93,000) accounted for only 6.5% of Kansas’ total population. Ibid. Although other Kansas cities may also have restricted public carry unilaterally,32 the lone late-19th-century state law respondents identify does not prove that Kansas meaningfully restricted public carry, let alone demonstrate a broad tradition of States doing so. At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to \"all Americans\" the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Heller, 554 U. S., at 581. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19thcentury outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to \"demonstrate a special need for self-protection distinguishable from that of the general community\" in order to carry arms in public. Klenosky, 75 App. Div., at 793, 428 N. Y. S. 2d, at 257. IV The constitutional right to bear arms in public for self-defense is not \"a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.\" McDonald, 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense. New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."},
{"docket_number": "17-1657", "syllabus": "Petitioner Mission Product Holdings, Inc., entered into a contract with Respondent Tempnology, LLC, which gave Mission a license to use Tempnology’s trademarks in connection with the distribution of certain clothing and accessories. Tempnology filed for Chapter 11 bankruptcy and sought to reject its agreement with Mission. Section 365 of the Bankruptcy Code enables a debtor to \"reject any executory contract\"—meaning a contract that neither party has finished performing. 11 U. S. C. §365(a). It further provides that rejection \"constitutes a breach of such contract.\" §365(g). The Bankruptcy Court approved Tempnology’s rejection and further held that the rejection terminated Mission’s rights to use Tempnology’s trademarks. The Bankruptcy Appellate Panel reversed, relying on Section 365(g)’s statement that rejection \"constitutes a breach\" to hold that rejection does not terminate rights that would survive a breach of contract outside bankruptcy. The First Circuit rejected the Panel’s judgment and reinstated the Bankruptcy Court’s decision. Held: 1. This case is not moot. Mission presents a plausible claim for money damages arising from its inability to use Tempnology’s trademarks, which is sufficient to preserve a live controversy. See Chafin v. Chafin, 568 U. S. 165, 172. Tempnology’s various arguments that Mission is not entitled to damages do not so clearly preclude recovery as to render this case moot. Pp. 6–7. 2. A debtor’s rejection of an executory contract under Section 365 of the Bankruptcy Code has the same effect as a breach of that contract outside bankruptcy. Such an act cannot rescind rights that the contract previously granted. Pp. 7–16. (a) Section 365(g) provides that rejection \"constitutes a breach.\" And \"breach\" is neither a defined nor a specialized bankruptcy term—it means in the Code what it means in contract law outside bankruptcy. See Field v. Mans, 516 U. S. 59, 69. Outside bankruptcy, a licensor’s breach cannot revoke continuing rights given to a counterparty under a contract (assuming no special contract term or state law). And because rejection \"constitutes a breach,\" the same result must follow from rejection in bankruptcy. In preserving a counterparty’s rights, Section 365 reflects the general bankruptcy rule that the estate cannot possess anything more than the debtor did outside bankruptcy. See Board of Trade of Chicago v. Johnson, 264 U. S. 1, 15. And conversely, allowing rejection to rescind a counterparty’s rights would circumvent the Code’s stringent limits on \"avoidance\" actions—the exceptional cases in which debtors may unwind pre-bankruptcy transfers that undermine the bankruptcy process. See, e.g., §548(a). Pp. 8–12. (b) Tempnology’s principal counterargument rests on a negative inference drawn from provisions of Section 365 identifying categories of contracts under which a counterparty may retain specified rights after rejection. See §§365(h), (i), (n). Tempnology argues that these provisions indicate that the ordinary consequence of rejection must be something different—i.e., the termination of contractual rights previously granted. But that argument offers no account of how to read Section 365(g) (rejection \"constitutes a breach\") to say essentially its opposite. And the provisions Tempnology treats as a reticulated scheme of exceptions each emerged at a different time and responded to a discrete problem—as often as not, correcting a judicial ruling of just the kind Tempnology urges. Tempnology’s remaining argument turns on how the special features of trademark law may affect the fulfillment of the Code’s goals. Unless rejection terminates a licensee’s right to use a trademark, Tempnology argues, a debtor must choose between monitoring the goods sold under a license or risking the loss of its trademark, either of which would impede a debtor’s ability to reorganize. But the distinctive features of trademarks do not persuade this Court to adopt a construction of Section 365 that will govern much more than trademark licenses. And Tempnology’s plea to facilitate reorganizations cannot overcome what Section 365(a) and (g) direct. In delineating the burdens a debtor may and may not escape, Section 365’s edict that rejection is breach expresses a more complex set of aims than Tempnology acknowledges. Pp. 12–16. 879 F. 3d 389, reversed and remanded.", "opinion": "Section 365 of the Bankruptcy Code enables a debtor to \"reject any executory contract\"—meaning a contract that neither party has finished performing. 11 U. S. C. §365(a). The section further provides that a debtor’s rejection of a contract under that authority \"constitutes a breach of such contract.\" §365(g). Today we consider the meaning of those provisions in the context of a trademark licensing agreement. The question is whether the debtor-licensor’s rejection of that contract deprives the licensee of its rights to use the trademark. We hold it does not. A rejection breaches a contract but does not rescind it. And that means all the rights that would ordinarily survive a contract breach, including those conveyed here, remain in place. I This case arises from a licensing agreement gone wrong. Respondent Tempnology, LLC, manufactured clothing and accessories designed to stay cool when used in exercise. It marketed those products under the brand name \"Coolcore,\" using trademarks (e.g., logos and labels) to distinguish the gear from other athletic apparel. In 2012, Tempnology entered into a contract with petitioner Mission Product Holdings, Inc. See App. 203–255. The agreement gave Mission an exclusive license to distribute certain Coolcore products in the United States. And more important here, it granted Mission a non-exclusive license to use the Coolcore trademarks, both in the United States and around the world. The agreement was set to expire in July 2016. But in September 2015, Tempnology filed a petition for Chapter 11 bankruptcy. And it soon afterward asked the Bankruptcy Court to allow it to \"reject\" the licensing agreement. §365(a). Chapter 11 of the Bankruptcy Code sets out a framework for reorganizing a bankrupt business. See §§1101– 1174. The filing of a petition creates a bankruptcy estate consisting of all the debtor’s assets and rights. See §541. The estate is the pot out of which creditors’ claims are paid. It is administered by either a trustee or, as in this case, the debtor itself. See §§1101, 1107. Section 365(a) of the Code provides that a \"trustee [or debtor], subject to the court’s approval, may assume or reject any executory contract.\" §365(a). A contract is executory if \"performance remains due to some extent on both sides.\" NLRB v. Bildisco & Bildisco, 465 U. S. 513, 522, n. 6 (1984) (internal quotation marks omitted). Such an agreement represents both an asset (the debtor’s right to the counterparty’s future performance) and a liability (the debtor’s own obligations to perform). Section 365(a) enables the debtor (or its trustee), upon entering bankruptcy, to decide whether the contract is a good deal for the estate going forward. If so, the debtor will want to assume the contract, fulfilling its obligations while benefiting from the counterparty’s performance. But if not, the debtor will want to reject the contract, repudiating any further performance of its duties. The bankruptcy court will generally approve that choice, under the deferential \"business judgment\" rule. Id., at 523. According to Section 365(g), \"the rejection of an executory contract[ ] constitutes a breach of such contract.\" As both parties here agree, the counterparty thus has a claim against the estate for damages resulting from the debtor’s nonperformance. See Brief for Petitioner 17, 19; Brief for Respondent 30–31. But such a claim is unlikely to ever be paid in full. That is because the debtor’s breach is deemed to occur \"immediately before the date of the filing of the [bankruptcy] petition,\" rather than on the actual postpetition rejection date. §365(g)(1). By thus giving the counterparty a pre-petition claim, Section 365(g) places that party in the same boat as the debtor’s unsecured creditors, who in a typical bankruptcy may receive only cents on the dollar. See Bildisco, 465 U. S., at 531–532 (noting the higher priority of post-petition claims). In this case, the Bankruptcy Court (per usual) approved Tempnology’s proposed rejection of its executory licensing agreement with Mission. See App. to Pet. for Cert. 83–84. That meant, as laid out above, two things on which the parties agree. First, Tempnology could stop performing under the contract. And second, Mission could assert (for whatever it might be worth) a pre-petition claim in the bankruptcy proceeding for damages resulting from Tempnology’s nonperformance. But Tempnology thought still another consequence ensued, and it returned to the Bankruptcy Court for a declaratory judgment confirming its view. According to Tempnology, its rejection of the contract also terminated the rights it had granted Mission to use the Coolcore trademarks. Tempnology based its argument on a negative inference. See Motion in No. 15–11400 (Bkrtcy. Ct. NH), pp. 9–14. Several provisions in Section 365 state that a counterparty to specific kinds of agreements may keep exercising contractual rights after a debtor’s rejection. For example, Section 365(h) provides that if a bankrupt landlord rejects a lease, the tenant need not move out; instead, she may stay and pay rent (just as she did before) until the lease term expires. And still closer to home, Section 365(n) sets out a similar rule for some types of intellectual property licenses: If the debtor-licensor rejects the agreement, the licensee can continue to use the property (typically, a patent), so long as it makes whatever payments the contract demands. But Tempnology pointed out that neither Section 365(n) nor any similar provision covers trademark licenses. So, it reasoned, in that sort of contract a different rule must apply: The debtor’s rejection must extinguish the rights that the agreement had conferred on the trademark licensee. The Bankruptcy Court agreed. See In re Tempnology, LLC, 541 B. R. 1 (Bkrtcy. Ct. NH 2015). It held, relying on the same \"negative inference,\" that Tempnology’s rejection of the licensing agreement revoked Mission’s right to use the Coolcore marks. Id., at 7. The Bankruptcy Appellate Panel reversed, relying heavily on a decision of the Court of Appeals for the Seventh Circuit about the effects of rejection on trademark licensing agreements. See In re Tempnology, LLC, 559 B. R. 809, 820–823 (Bkrtcy. App. Panel CA1 2016); Sunbeam Products, Inc. v. Chicago Am. Mfg., LLC, 686 F. 3d 372, 376–377 (CA7 2012). Rather than reason backward from Section 365(n) or similar provisions, the Panel focused on Section 365(g)’s statement that rejection of a contract \"constitutes a breach.\" Outside bankruptcy, the court explained, the breach of an agreement does not eliminate rights the contract had already conferred on the non-breaching party. See 559 B. R., at 820. So neither could a rejection of an agreement in bankruptcy have that effect. A rejection \"convert[s]\" a \"debtor’s unfulfilled obligations\" to a pre-petition damages claim. Id., at 822 (quoting Sunbeam, 686 F. 3d, at 377). But it does not \"terminate the contract\" or \"vaporize[ ]\" the counterparty’s rights. 559 B. R., at 820, 822 (quoting Sunbeam, 686 F. 3d, at 377). Mission could thus continue to use the Coolcore trademarks. But the Court of Appeals for the First Circuit rejected the Panel’s and Seventh Circuit’s view, and reinstated the Bankruptcy Court decision terminating Mission’s license. See In re Tempnology, LLC, 879 F. 3d 389 (2018). The majority first endorsed that court’s inference from Section 365(n) and similar provisions. It next reasoned that special features of trademark law counsel against allowing a licensee to retain rights to a mark after the licensing agreement’s rejection. Under that body of law, the majority stated, the trademark owner’s \"[f]ailure to monitor and exercise [quality] control\" over goods associated with a trademark \"jeopardiz[es] the continued validity of [its] own trademark rights.\" Id., at 402. So if (the majority continued) a licensee can keep using a mark after an agreement’s rejection, the licensor will need to carry on its monitoring activities. And according to the majority, that would frustrate \"Congress’s principal aim in providing for rejection\": to \"release the debtor’s estate from burdensome obligations.\" Ibid. (internal quotation marks omitted). Judge Torruella dissented, mainly for the Seventh Circuit’s reasons. See id., at 405–407. We granted certiorari to resolve the division between the First and Seventh Circuits. 586 U. S. ___ (2018). We now affirm the Seventh’s reasoning and reverse the decision below. II Before reaching the merits, we pause to consider Tempnology’s claim that this case is moot. Under settled law, we may dismiss the case for that reason only if \"it is impossible for a court to grant any effectual relief whatever\" to Mission assuming it prevails. Chafin v. Chafin, 568 U. S. 165, 172 (2013) (internal quotation marks omitted). That demanding standard is not met here. Mission has presented a claim for money damages— essentially lost profits—arising from its inability to use the Coolcore trademarks between the time Tempnology rejected the licensing agreement and its scheduled expiration date. See Reply Brief 22, and n. 8. Such claims, if at all plausible, ensure a live controversy. See Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 8–9 (1978). For better or worse, nothing so shows a continuing stake in a dispute’s outcome as a demand for dollars and cents. See 13C C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §3533.3, p. 2 (3d ed. 2008) (Wright & Miller) (\"[A] case is not moot so long as a claim for monetary relief survives\"). Ultimate recovery on that demand may be uncertain or even unlikely for any number of reasons, in this case as in others. But that is of no moment. If there is any chance of money changing hands, Mission’s suit remains live. See Chafin, 568 U. S., at 172. Tempnology makes a flurry of arguments about why Mission is not entitled to damages, but none so clearly precludes recovery as to make this case moot. First, Tempnology contends that Mission suffered no injury because it \"never used the trademark[s] during [the postrejection] period.\" Brief for Respondent 24; see Tr. of Oral Arg. 33. But that gets things backward. Mission’s nonuse of the marks during that time is precisely what gives rise to its damages claim; had it employed the marks, it would not have lost any profits. So next, Tempnology argues that Mission’s non-use was its own \"choice,\" for which damages cannot lie. See id., at 26. But recall that the Bankruptcy Court held that Mission could not use the marks after rejection (and its decision remained in effect through the agreement’s expiration). See supra, at 4. And although (as Tempnology counters) the court issued \"no injunction,\" Brief for Respondent 26, that difference does not matter: Mission need not have flouted a crystal-clear ruling and courted yet more legal trouble to preserve its claim. Cf. 13B Wright & Miller §3533.2.2, at 852 (\"[C]ompliance [with a judicial decision] does not moot [a case] if it remains possible to undo the effects of compliance,\" as through compensation). So last, Tempnology claims that it bears no blame (and thus should not have to pay) for Mission’s injury because all it did was \"ask[ ] the court to make a ruling.\" Tr. of Oral Arg. 34–35. But whether Tempnology did anything to Mission amounting to a legal wrong is a prototypical merits question, which no court has addressed and which has no obvious answer. That means it is no reason to find this case moot. And so too for Tempnology’s further argument that Mission will be unable to convert any judgment in its favor to hard cash. Here, Tempnology notes that the bankruptcy estate has recently distributed all of its assets, leaving nothing to satisfy Mission’s judgment. See Brief for Respondent 27. But courts often adjudicate disputes whose \"practical impact\" is unsure at best, as when \"a defendant is insolvent.\" Chafin, 568 U. S., at 175. And Mission notes that if it prevails, it can seek the unwinding of prior distributions to get its fair share of the estate. See Reply Brief 23. So although this suit \"may not make [Mission] rich,\" or even better off, it remains a live controversy— allowing us to proceed. Chafin, 568 U. S., at 176. III What is the effect of a debtor’s (or trustee’s) rejection of a contract under Section 365 of the Bankruptcy Code? The parties and courts of appeals have offered us two starkly different answers. According to one view, a rejection has the same consequence as a contract breach outside bankruptcy: It gives the counterparty a claim for damages, while leaving intact the rights the counterparty has received under the contract. According to the other view, a rejection (except in a few spheres) has more the effect of a contract rescission in the non-bankruptcy world: Though also allowing a damages claim, the rejection terminates the whole agreement along with all rights it conferred. Today, we hold that both Section 365’s text and fundamental principles of bankruptcy law command the first, rejection-as-breach approach. We reject the competing claim that by specifically enabling the counterparties in some contracts to retain rights after rejection, Congress showed that it wanted the counterparties in all other contracts to lose their rights. And we reject an argument for the rescission approach turning on the distinctive features of trademark licenses. Rejection of a contract— any contract—in bankruptcy operates not as a rescission but as a breach. A We start with the text of the Code’s principal provisions on rejection—and find that it does much of the work. As noted earlier, Section 365(a) gives a debtor the option, subject to court approval, to \"assume or reject any executory contract.\" See supra, at 2. And Section 365(g) describes what rejection means. Rejection \"constitutes a breach of [an executory] contract,\" deemed to occur \"immediately before the date of the filing of the petition.\" See supra, at 3. Or said more pithily for current purposes, a rejection is a breach. And \"breach\" is neither a defined nor a specialized bankruptcy term. It means in the Code what it means in contract law outside bankruptcy. See Field v. Mans, 516 U. S. 59, 69 (1995) (Congress generally meant for the Bankruptcy Code to \"incorporate the established meaning\" of \"terms that have accumulated settled meaning\" (internal quotation marks omitted)). So the first place to go in divining the effects of rejection is to nonbankruptcy contract law, which can tell us the effects of breach. Consider a made-up executory contract to see how the law of breach works outside bankruptcy. A dealer leases a photocopier to a law firm, while agreeing to service it every month; in exchange, the firm commits to pay a monthly fee. During the lease term, the dealer decides to stop servicing the machine, thus breaching the agreement in a material way. The law firm now has a choice (assuming no special contract term or state law). The firm can keep up its side of the bargain, continuing to pay for use of the copier, while suing the dealer for damages from the service breach. Or the firm can call the whole deal off, halting its own payments and returning the copier, while suing for any damages incurred. See 13 R. Lord, Williston on Contracts §39:32, pp. 701–702 (4th ed. 2013) (\"[W]hen a contract is breached in the course of performance, the injured party may elect to continue the contract or refuse to perform further\"). But to repeat: The choice to terminate the agreement and send back the copier is for the law firm. By contrast, the dealer has no ability, based on its own breach, to terminate the agreement. Or otherwise said, the dealer cannot get back the copier just by refusing to show up for a service appointment. The contract gave the law firm continuing rights in the copier, which the dealer cannot unilaterally revoke. And now to return to bankruptcy: If the rejection of the photocopier contract \"constitutes a breach,\" as the Code says, then the same results should follow (save for one twist as to timing). Assume here that the dealer files a Chapter 11 petition and decides to reject its agreement with the law firm. That means, as above, that the dealer will stop servicing the copier. It means, too, that the law firm has an option about how to respond—continue the contract or walk away, while suing for whatever damages go with its choice. (Here is where the twist comes in: Because the rejection is deemed to occur \"immediately before\" bankruptcy, the firm’s damages suit is treated as a pre-petition claim on the estate, which will likely receive only cents on the dollar. See supra, at 3.) And most important, it means that assuming the law firm wants to keep using the copier, the dealer cannot take it back. A rejection does not terminate the contract. When it occurs, the debtor and counterparty do not go back to their precontract positions. Instead, the counterparty retains the rights it has received under the agreement. As after a breach, so too after a rejection, those rights survive. All of this, it will hardly surprise you to learn, is not just about photocopier leases. Sections 365(a) and (g) speak broadly, to \"any executory contract[s].\" Many licensing agreements involving trademarks or other property are of that kind (including, all agree, the Tempnology-Mission contract). The licensor not only grants a license, but provides associated goods or services during its term; the licensee pays continuing royalties or fees. If the licensor breaches the agreement outside bankruptcy (again, barring any special contract term or state law), everything said above goes. In particular, the breach does not revoke the license or stop the licensee from doing what it allows. See, e.g., Sunbeam, 686 F. 3d, at 376 (\"Outside of bankruptcy, a licensor’s breach does not terminate a licensee’s right to use [the licensed] intellectual property\"). And because rejection \"constitutes a breach,\" §365(g), the same consequences follow in bankruptcy. The debtor can stop performing its remaining obligations under the agreement. But the debtor cannot rescind the license already conveyed. So the licensee can continue to do whatever the license authorizes. In preserving those rights, Section 365 reflects a general bankruptcy rule: The estate cannot possess anything more than the debtor itself did outside bankruptcy. See Board of Trade of Chicago v. Johnson, 264 U. S. 1, 15 (1924) (establishing that principle); §541(a)(1) (defining the estate to include the \"interests of the debtor in property\" (emphasis added)). As one bankruptcy scholar has put the point: Whatever \"limitation[s] on the debtor’s property [apply] outside of bankruptcy[ ] appl[y] inside of bankruptcy as well. A debtor’s property does not shrink by happenstance of bankruptcy, but it does not expand, either.\" D. Baird, Elements of Bankruptcy 97 (6th ed. 2014). So if the not-yet debtor was subject to a counterparty’s contractual right (say, to retain a copier or use a trademark), so too is the trustee or debtor once the bankruptcy petition has been filed. The rejection-as-breach rule (but not the rejection-as-rescission rule) ensures that result. By insisting that the same counterparty rights survive rejection as survive breach, the rule prevents a debtor in bankruptcy from recapturing interests it had given up. And conversely, the rejection-as-rescission approach would circumvent the Code’s stringent limits on \"avoidance\" actions—the exceptional cases in which trustees (or debtors) may indeed unwind pre-bankruptcy transfers that undermine the bankruptcy process. The most notable example is for fraudulent conveyances—usually, something-for-nothing transfers that deplete the estate (and so cheat creditors) on the eve of bankruptcy. See §548(a). A trustee’s avoidance powers are laid out in a discrete set of sections in the Code, see §§544–553, far away from Section 365. And they can be invoked in only narrow circumstances—unlike the power of rejection, which may be exercised for any plausible economic reason. See, e.g., §548(a) (describing the requirements for avoiding fraudulent transfers); supra, at 2–3. If trustees (or debtors) could use rejection to rescind previously granted interests, then rejection would become functionally equivalent to avoidance. Both, that is, would roll back a prior transfer. And that result would subvert everything the Code does to keep avoidances cabined—so they do not threaten the rule that the estate can take only what the debtor possessed before filing. Again, then, core tenets of bankruptcy law push in the same direction as Section 365’s text: Rejection is breach, and has only its consequences. B Tempnology’s main argument to the contrary, here as in the courts below, rests on a negative inference. See Brief for Respondent 33–41; supra, at 3–4. Several provisions of Section 365, Tempnology notes, \"identif[y] categories of contracts under which a counterparty\" may retain specified contract rights \"notwithstanding rejection.\" Brief for Respondent 34. Sections 365(h) and (i) make clear that certain purchasers and lessees of real property and timeshare interests can continue to exercise rights after a debtor has rejected the lease or sales contract. See §365(h)(1) (real-property leases); §365(i) (real-property sales contracts); §§365(h)(2), (i) (timeshare interests). And Section 365(n) similarly provides that licensees of some intellectual property—but not trademarks—retain contractual rights after rejection. See §365(n); §101(35A); supra, at 4. Tempnology argues from those provisions that the ordinary consequence of rejection must be something different—i.e., the termination, rather than survival, of contractual rights previously granted. Otherwise, Tempnology concludes, the statute’s \"general rule\" would \"swallow the exceptions.\" Brief for Respondent 19. But that argument pays too little heed to the main provisions governing rejection and too much to subsidiary ones. On the one hand, it offers no account of how to read Section 365(g) (recall, rejection \"constitutes a breach\") to say essentially its opposite (i.e., that rejection and breach have divergent consequences). On the other hand, it treats as a neat, reticulated scheme of \"narrowly tailored exception[s],\" id., at 36 (emphasis deleted), what history reveals to be anything but. Each of the provisions Tempnology highlights emerged at a different time, over a span of half a century. See, e.g., 52 Stat. 881 (1938) (realproperty leases); §1(b), 102 Stat. 2538 (1988) (intellectual property). And each responded to a discrete problem—as often as not, correcting a judicial ruling of just the kind Tempnology urges. See Andrew, Executory Contracts in Bankruptcy, 59 U. Colo. L. Rev. 845, 911–912, 916–919 (1988) (identifying judicial decisions that the provisions overturned); compare, e.g., In re Sombrero Reef Club, Inc., 18 B. R. 612, 618–619 (Bkrtcy. Ct. SD Fla. 1982), with, e.g., §§365(h)(2), (i). Read as generously as possible to Tempnology, this mash-up of legislative interventions says nothing much of anything about the content of Section 365(g)’s general rule. Read less generously, it affirmatively refutes Tempnology’s rendition. As one bankruptcy scholar noted after an exhaustive review of the history: \"What the legislative record [reflects] is that whenever Congress has been confronted with the consequences of the [view that rejection terminates all contractual rights], it has expressed its disapproval.\" Andrew, 59 U. Colo. L. Rev., at 928. On that account, Congress enacted the provisions, as and when needed, to reinforce or clarify the general rule that contractual rights survive rejection. Consider more closely, for example, Congress’s enactment of Section 365(n), which addresses certain intellectual property licensing agreements. No one disputes how that provision came about. In Lubrizol Enterprises v. Richmond Metal Finishers, the Fourth Circuit held that a debtor’s rejection of an executory contract worked to revoke its grant of a patent license. See 756 F. 2d 1043, 1045–1048 (1985). In other words, Lubrizol adopted the same rule for patent licenses that the First Circuit announced for trademark licenses here. Congress sprang into action, drafting Section 365(n) to reverse Lubrizol and ensure the continuation of patent (and some other intellectual property) licensees’ rights. See 102 Stat. 2538 (1988); S. Rep. No. 100–505, pp. 2–4 (1988) (explaining that Section 365(n) \"corrects [Lubrizol’s] perception\" that \"Section 365 was ever intended to be a mechanism for stripping innocent licensee[s] of rights\"). As Tempnology highlights, that provision does not cover trademark licensing agreements, which continue to fall, along with most other contracts, within Section 365(g)’s general rule. See Brief for Respondent 38. But what of that? Even put aside the claim that Section 365(n) is part of a pattern—that Congress whacked Tempnology’s view of rejection wherever it raised its head. See supra, at 13. Still, Congress’s repudiation of Lubrizol for patent contracts does not show any intent to ratify that decision’s approach for almost all others. Which is to say that no negative inference arises. Congress did nothing in adding Section 365(n) to alter the natural reading of Section 365(g)—that rejection and breach have the same results. Tempnology’s remaining argument turns on the way special features of trademark law may affect the fulfillment of the Code’s goals. Like the First Circuit below, Tempnology here focuses on a trademark licensor’s duty to monitor and \"exercise quality control over the goods and services sold\" under a license. Brief for Respondent 20; see supra, at 5. Absent those efforts to keep up quality, the mark will naturally decline in value and may eventually become altogether invalid. See 3 J. McCarthy, Trademarks and Unfair Competition §18:48, pp. 18–129, 18–133 (5th ed. 2018). So (Tempnology argues) unless rejection of a trademark licensing agreement terminates the licensee’s rights to use the mark, the debtor will have to choose between expending scarce resources on quality control and risking the loss of a valuable asset. See Brief for Respondent 59. \"Either choice,\" Tempnology concludes, \"would impede a [debtor’s] ability to reorganize,\" thus \"undermining a fundamental purpose of the Code.\" Id., at 59–60. To begin with, that argument is a mismatch with Tempnology’s reading of Section 365. The argument is trademark-specific. But Tempnology’s reading of Section 365 is not. Remember, Tempnology construes that section to mean that a debtor’s rejection of a contract terminates the counterparty’s rights \"unless the contract falls within an express statutory exception.\" Id., at 27–28; see supra, at 12. That construction treats trademark agreements identically to most other contracts; the only agreements getting different treatment are those falling within the discrete provisions just discussed. And indeed, Tempnology could not have discovered, however hard it looked, any trademark-specific rule in Section 365. That section’s special provisions, as all agree, do not mention trademarks; and the general provisions speak, well, generally. So Tempnology is essentially arguing that distinctive features of trademarks should persuade us to adopt a construction of Section 365 that will govern not just trademark agreements, but pretty nearly every executory contract. However serious Tempnology’s trademarkrelated concerns, that would allow the tail to wag the Doberman. And even putting aside that incongruity, Tempnology’s plea to facilitate trademark licensors’ reorganizations cannot overcome what Sections 365(a) and (g) direct. The Code of course aims to make reorganizations possible. But it does not permit anything and everything that might advance that goal. See, e.g., Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S. 33, 51 (2008) (observing that in enacting Chapter 11, Congress did not have \"a single purpose,\" but \"str[uck] a balance\" among multiple competing interests (internal quotation marks omitted)). Here, Section 365 provides a debtor like Tempnology with a powerful tool: Through rejection, the debtor can escape all of its future contract obligations, without having to pay much of anything in return. See supra, at 3. But in allowing rejection of those contractual duties, Section 365 does not grant the debtor an exemption from all the burdens that generally applicable law—whether involving contracts or trademarks—imposes on property owners. See 28 U. S. C. §959(b) (requiring a trustee to manage the estate in accordance with applicable law). Nor does Section 365 relieve the debtor of the need, against the backdrop of that law, to make economic decisions about preserving the estate’s value—such as whether to invest the resources needed to maintain a trademark. In thus delineating the burdens that a debtor may and may not escape, Congress also weighed (among other things) the legitimate interests and expectations of the debtor’s counterparties. The resulting balance may indeed impede some reorganizations, of trademark licensors and others. But that is only to say that Section 365’s edict that rejection is breach expresses a more complex set of aims than Tempnology acknowledges. IV For the reasons stated above, we hold that under Section 365, a debtor’s rejection of an executory contract in bankruptcy has the same effect as a breach outside bankruptcy. Such an act cannot rescind rights that the contract previously granted. Here, that construction of Section 365 means that the debtor-licensor’s rejection cannot revoke the trademark license. We accordingly reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."},
{"docket_number": "17-532", "syllabus": "An 1868 treaty between the United States and the Crow Tribe promised that in exchange for most of the Tribe’s territory in modern-day Montana and Wyoming, its members would \"have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon . . . and peace subsists . . . on the borders of the hunting districts.\" 15 Stat. 650. In 2014, Wyoming charged petitioner Clayvin Herrera with off-season hunting in Bighorn National Forest and being an accessory to the same. The state trial court rejected Herrera’s argument that he had a protected right to hunt in the forest pursuant to the 1868 Treaty, and a jury convicted him. On appeal, the state appellate court relied on the reasoning of the Tenth Circuit’s decision in Crow Tribe of Indians v. Repsis, 73 F. 3d 982— which in turn relied upon this Court’s decision in Ward v. Race Horse, 163 U. S. 504—and held that the treaty right expired upon Wyoming’s statehood. The court rejected Herrera’s argument that this Court’s subsequent decision in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, repudiated Race Horse and therefore undercut the logic of Repsis. In any event, the court concluded, Herrera was precluded from arguing that the treaty right survived Wyoming’s statehood because the Crow Tribe had litigated Repsis on behalf of itself and its members. Even if the 1868 Treaty right survived Wyoming’s statehood, the court added, it did not permit Herrera to hunt in Bighorn National Forest because the treaty right applies only on unoccupied lands and the national forest became categorically occupied when it was created. Held: 1. The Crow Tribe’s hunting rights under the 1868 Treaty did not expire upon Wyoming’s statehood. Pp. 6–17. (a) This case is controlled by Mille Lacs, not Race Horse. Race Horse concerned a hunting right guaranteed in an 1868 treaty with the Shoshone and Bannock Tribes containing language identical to that at issue here. Relying on two lines of reasoning, the Race Horse Court held that Wyoming’s admission to the United States in 1890 extinguished the Shoshone-Bannock Treaty right. First, the doctrine that new States are admitted to the Union on an \"equal footing\" with existing States led the Court to conclude that affording the Tribes a protected hunting right lasting after statehood would conflict with the power vested in those States—and newly shared by Wyoming— \"to regulate the killing of game within their borders.\" 163 U. S., at 514. Second, the Court found no evidence in the Shoshone-Bannock Treaty itself that Congress intended the treaty right to continue in \"perpetuity.\" Id., at 514–515. Mille Lacs undercut both pillars of Race Horse’s reasoning. Mille Lacs established that the crucial inquiry for treaty termination analysis is whether Congress has \"clearly express[ed]\" an intent to abrogate an Indian treaty right, 526 U. S., at 202, or whether a termination point identified in the treaty itself has been satisfied, id., at 207. Thus, while Race Horse \"was not expressly overruled\" in Mille Lacs, it \"retain[s] no vitality,\" Limbach v. Hooven & Allison Co., 466 U. S. 353, 361, and is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood. Pp. 6–11. (b) Repsis does not preclude Herrera from arguing that the 1868 Treaty right survived Wyoming’s statehood. Even when the elements of issue preclusion are met, an exception may be warranted if there has been an intervening \" ‘change in [the] applicable legal context.’ \" Bobby v. Bies, 556 U. S. 825, 834. Here, Mille Lacs’ repudiation of Race Horse’s reasoning—on which Repsis relied—justifies such an exception. Pp. 11–13. (c) Applying Mille Lacs, Wyoming’s admission into the Union did not abrogate the Crow Tribe’s off-reservation treaty hunting right. First, the Wyoming Statehood Act does not show that Congress \"clearly expressed\" an intent to end the 1868 Treaty hunting right. See 526 U. S., at 202. There is also no evidence in the treaty itself that Congress intended the hunting right to expire at statehood, or that the Crow Tribe would have understood it to do so. Nor does the historical record support such a reading of the treaty. The State counters that statehood, as a practical matter, rendered all the lands in the State occupied. Even assuming that Wyoming presents an accurate historical picture, the State, by using statehood as a proxy for occupation, subverts this Court’s clear instruction that treaty-protected rights \"are not impliedly terminated upon statehood.\" Id., at 207. To the extent that the State seeks to rely on historical evidence to establish that all land in Wyoming was functionally \"occupied\" by 1890, its arguments fall outside the question presented and are unpersuasive in any event. Pp. 13–17. 2. Bighorn National Forest did not become categorically \"occupied\" within the meaning of the 1868 Treaty when the national forest was created. Construing the treaty’s terms as \"‘they would naturally be understood by the Indians,’ \" Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 676, it is clear that the Tribe would have understood the word \"unoccupied\" to denote an area free of residence or settlement by non-Indians. That interpretation follows from several cues in the treaty’s text. For example, the treaty made the hunting right contingent on peace \"among the whites and Indians on the borders of the hunting districts,\" 15 Stat. 650, thus contrasting the unoccupied hunting districts with areas of white settlement. Historical evidence confirms this reading of \"unoccupied.\" Wyoming’s counterarguments are unavailing. The Federal Government’s exercise of control and withdrawing of the forest lands from settlement would not categorically transform the territory into an area resided on or settled by non-Indians; quite the opposite. Nor would mining and logging of the forest lands prior to 1897 have caused the Tribe to view the Bighorn Mountains as occupied. Pp. 17–21. 3. This decision is limited in two ways. First, the Court holds that Bighorn National Forest is not categorically occupied, not that all areas within the forest are unoccupied. Second, the state trial court decided that Wyoming could regulate the exercise of the 1868 Treaty right \"in the interest of conservation,\" an issue not reached by the appellate court. The Court also does not address the viability of the State’s arguments on this issue. Pp. 21–22. Vacated and remanded.", "opinion": "In 1868, the Crow Tribe ceded most of its territory in modern-day Montana and Wyoming to the United States. In exchange, the United States promised that the Crow Tribe \"shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon\" and \"peace subsists . . . on the borders of the hunting districts.\" Treaty Between the United States of America and the Crow Tribe of Indians (1868 Treaty), Art. IV, May 7, 1868, 15 Stat. 650. Petitioner Clayvin Herrera, a member of the Tribe, invoked this treaty right as a defense against charges of off-season hunting in Bighorn National Forest in Wyoming. The Wyoming courts held that the treaty-protected hunting right expired when Wyoming became a State and, in any event, does not permit hunting in Bighorn National Forest because that land is not \"unoccupied.\" We disagree. The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within Bighorn National Forest did not become categorically \"occupied\" when set aside as a national reserve. I A The Crow Tribe first inhabited modern-day Montana more than three centuries ago. Montana v. United States, 450 U. S. 544, 547 (1981). The Tribe was nomadic, and its members hunted game for subsistence. J. Medicine Crow, From the Heart of the Crow Country 4–5, 8 (1992). The Bighorn Mountains of southern Montana and northern Wyoming \"historically made up both the geographic and the spiritual heart\" of the Tribe’s territory. Brief for Crow Tribe of Indians as Amicus Curiae 5. The westward migration of non-Indians began a new chapter in the Tribe’s history. In 1825, the Tribe signed a treaty of friendship with the United States. Treaty With the Crow Tribe, Aug. 4, 1825, 7 Stat. 266. In 1851, the Federal Government and tribal representatives entered into the Treaty of Fort Laramie, in which the Crow Tribe and other area tribes demarcated their respective lands. Montana, 450 U. S., at 547–548. The Treaty of Fort Laramie specified that \"the tribes did not ‘surrender the privilege of hunting, fishing, or passing over’ any of the lands in dispute\" by entering the treaty. Id., at 548. After prospectors struck gold in Idaho and western Montana, a new wave of settlement prompted Congress to initiate further negotiations. See F. Hoxie, Parading Through History 88–90 (1995). Federal negotiators, including Commissioner of Indian Affairs Nathaniel G. Taylor, met with Crow Tribe leaders for this purpose in 1867. Taylor acknowledged that \"settlements ha[d] been made\" upon the Crow Tribe’s lands and that their \"game [was] being driven away.\" Institute for the Development of Indian Law, Proceedings of the Great Peace Commission of 1867–1868, p. 86 (1975) (hereinafter Proceedings). He told the assembled tribal leaders that the United States wished to \"set apart a tract of [Crow Tribe] country as a home\" for the Tribe \"forever\" and to buy the rest of the Tribe’s land. Ibid. Taylor emphasized that the Tribe would have \"the right to hunt upon\" the land it ceded to the Federal Government \"as long as the game lasts.\" Ibid. At the convening, Tribe leaders stressed the vital importance of preserving their hunting traditions. See id., at 88 (Black Foot: \"You speak of putting us on a reservation and teaching us to farm. . . . That talk does not please us. We want horses to run after the game, and guns and ammunition to kill it. I would like to live just as I have been raised\"); id., at 89 (Wolf Bow: \"You want me to go on a reservation and farm. I do not want to do that. I was not raised so\"). Although Taylor responded that \"[t]he game w[ould] soon entirely disappear,\" he also reassured tribal leaders that they would \"still be free to hunt\" as they did at the time even after the reservation was created. Id., at 90. The following spring, the Crow Tribe and the United States entered into the treaty at issue in this case: the 1868 Treaty. 15 Stat. 649. Pursuant to the 1868 Treaty, the Crow Tribe ceded over 30 million acres of territory to the United States. See Montana, 450 U. S., at 547–548; Art. II, 15 Stat. 650. The Tribe promised to make its \"permanent home\" a reservation of about 8 million acres in what is now Montana and to make \"no permanent settlement elsewhere.\" Art. IV, 15 Stat. 650. In exchange, the United States made certain promises to the Tribe, such as agreeing to construct buildings on the reservation, to provide the Tribe members with seeds and implements for farming, and to furnish the Tribe with clothing and other goods. 1868 Treaty, Arts. III–XII, id., at 650–652. Article IV of the 1868 Treaty memorialized Commissioner Taylor’s pledge to preserve the Tribe’s right to hunt offreservation, stating: \"The Indians . . . shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.\" Id., at 650. A few months after the 1868 Treaty signing, Congress established the Wyoming Territory. Congress provided that the establishment of this new Territory would not \"impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty.\" An Act to Provide a Temporary Government for the Territory of Wyoming (Wyoming Territory Act), July 25, 1868, ch. 235, 15 Stat. 178. Around two decades later, the people of the new Territory adopted a constitution and requested admission to the United States. In 1890, Congress formally admitted Wyoming \"into the Union on an equal footing with the original States in all respects,\" in an Act that did not mention Indian treaty rights. An Act to Provide for the Admission of the State of Wyoming into the Union (Wyoming Statehood Act), July 10, 1890, ch. 664, 26 Stat. 222. Finally, in 1897, President Grover Cleveland set apart an area in Wyoming as a public land reservation and declared the land \"reserved from entry or settlement.\" Presidential Proclamation No. 30, 29 Stat. 909. This area, made up of lands ceded by the Crow Tribe in 1868, became known as the Bighorn National Forest. See App. 234; Crow Tribe of Indians v. Repsis, 73 F. 3d 982, 985 (CA10 1995). B Petitioner Clayvin Herrera is a member of the Crow Tribe who resides on the Crow Reservation in Montana. In 2014, Herrera and other Tribe members pursued a group of elk past the boundary of the reservation and into the neighboring Bighorn National Forest in Wyoming. They shot several bull elk and returned to Montana with the meat. The State of Wyoming charged Herrera for taking elk off-season or without a state hunting license and with being an accessory to the same. In state trial court, Herrera asserted that he had a protected right to hunt where and when he did pursuant to the 1868 Treaty. The court disagreed and denied Herrera’s pretrial motion to dismiss. See Nos. CT–2015–2687, CT–2015–2688 (4th Jud. Dist. C. C., Sheridan Cty., Wyo., Oct. 16, 2015), App. to Pet. for Cert. 37, 41. Herrera unsuccessfully sought a stay of the trial court’s order from the Wyoming Supreme Court and this Court. He then went to trial, where he was not permitted to advance a treaty-based defense, and a jury convicted him on both counts. The trial court imposed a suspended jail sentence, as well as a fine and a 3-year suspension of Herrera’s hunting privileges. Herrera appealed. The central question facing the state appellate court was whether the Crow Tribe’s offreservation hunting right was still valid. The U. S. Court of Appeals for the Tenth Circuit, reviewing the same treaty right in 1995 in Crow Tribe of Indians v. Repsis, had ruled that the right had expired when Wyoming became a State. 73 F. 3d, at 992–993. The Tenth Circuit’s decision in Repsis relied heavily on a 19th-century decision of this Court, Ward v. Race Horse, 163 U. S. 504, 516 (1896). Herrera argued in the state court that this Court’s subsequent decision in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172 (1999), repudiated Race Horse, and he urged the Wyoming court to follow Mille Lacs instead of the Repsis and Race Horse decisions that preceded it. The state appellate court saw things differently. Reasoning that Mille Lacs had not overruled Race Horse, the court held that the Crow Tribe’s 1868 Treaty right expired upon Wyoming’s statehood. No. 2016–242 (4th Jud. Dist., Sheridan Cty., Wyo., Apr. 25, 2017), App. to Pet. for Cert. 31–34. Alternatively, the court concluded that the Repsis Court’s judgment merited issue-preclusive effect against Herrera because he is a member of the Crow Tribe, and the Tribe had litigated the Repsis suit on behalf of itself and its members. App. to Pet. for Cert. 15–17, 31; App. 258. Herrera, in other words, was not allowed to relitigate the validity of the treaty right in his own case. The court also held that, even if the 1868 Treaty right survived Wyoming’s entry into the Union, it did not permit Herrera to hunt in Bighorn National Forest. Again following Repsis, the court concluded that the treaty right applies only on \"unoccupied\" lands and that the national forest became categorically \"occupied\" when it was created. See App. to Pet. for Cert. 33–34; Repsis, 73 F. 3d, at 994. The state appellate court affirmed the trial court’s judgment and sentence. The Wyoming Supreme Court denied a petition for review, and this Court granted certiorari. 585 U. S. ___ (2018). For the reasons that follow, we now vacate and remand. II We first consider whether the Crow Tribe’s hunting rights under the 1868 Treaty remain valid. Relying on this Court’s decision in Mille Lacs, Herrera and the United States contend that those rights did not expire when Wyoming became a State in 1890. We agree. A Wyoming argues that this Court’s decision in Race Horse establishes that the Crow Tribe’s 1868 Treaty right expired at statehood. But this case is controlled by Mille Lacs, not Race Horse. Race Horse concerned a hunting right guaranteed in a treaty with the Shoshone and Bannock Tribes. The Shoshone-Bannock Treaty and the 1868 Treaty with the Crow Tribe were signed in the same year and contain identical language reserving an off-reservation hunting right. See Treaty Between the United States of America and the Eastern Band of Shoshonees [sic] and the Bannack [sic] Tribe of Indians (Shoshone-Bannock Treaty), July 3, 1868, 15 Stat. 674–675 (\"[T]hey shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts\"). The Race Horse Court concluded that Wyoming’s admission to the United States extinguished the Shoshone-Bannock Treaty right. 163 U. S., at 505, 514–515. Race Horse relied on two lines of reasoning. The first turned on the doctrine that new States are admitted to the Union on an \"equal footing\" with existing States. Id., at 511–514 (citing, e.g., Lessee of Pollard v. Hagan, 3 How. 212 (1845)). This doctrine led the Court to conclude that the Wyoming Statehood Act repealed the Shoshone and Bannock Tribes’ hunting rights, because affording the Tribes a protected hunting right lasting after statehood would be \"irreconcilably in conflict\" with the power— \"vested in all other States of the Union\" and newly shared by Wyoming—\"to regulate the killing of game within their borders.\" 163 U. S., at 509, 514. Second, the Court found no evidence in the ShoshoneBannock Treaty itself that Congress intended the treaty right to continue in \"perpetuity.\" Id., at 514–515. To the contrary, the Court emphasized that Congress \"clearly contemplated the disappearance of the conditions\" specified in the treaty. Id., at 509. The Court decided that the rights at issue in the Shoshone-Bannock Treaty were \"essentially perishable\" and afforded the Tribes only a \"temporary and precarious\" privilege. Id., at 515. More than a century after Race Horse and four years after Repsis relied on that decision, however, Mille Lacs undercut both pillars of Race Horse’s reasoning. Mille Lacs considered an 1837 Treaty that guaranteed to several bands of Chippewa Indians the privilege of hunting, fishing, and gathering in ceded lands \"‘during the pleasure of the President.’\" 526 U. S., at 177 (quoting 1837 Treaty With the Chippewa, 7 Stat. 537). In an opinion extensively discussing and distinguishing Race Horse, the Court decided that the treaty rights of the Chippewa bands survived after Minnesota was admitted to the Union. 526 U. S., at 202–208. Mille Lacs approached the question before it in two stages. The Court first asked whether the Act admitting Minnesota to the Union abrogated the treaty right of the Chippewa bands. Next, the Court examined the Chippewa Treaty itself for evidence that the parties intended the treaty right to expire at statehood. These inquires roughly track the two lines of analysis in Race Horse. Despite these parallel analyses, however, the Mille Lacs Court refused Minnesota’s invitation to rely on Race Horse, explaining that the case had \"been qualified by later decisions.\" 526 U. S., at 203. Although Mille Lacs stopped short of explicitly overruling Race Horse, it methodically repudiated that decision’s logic. To begin with, in addressing the effect of the Minnesota Statehood Act on the Chippewa Treaty right, the Mille Lacs Court entirely rejected the \"equal footing\" reasoning applied in Race Horse. The earlier case concluded that the Act admitting Wyoming to the Union on an equal footing \"repeal[ed]\" the Shoshone-Bannock Treaty right because the treaty right was \"irreconcilable\" with state sovereignty over natural resources. Race Horse, 163 U. S., at 514. But Mille Lacs explained that this conclusion \"rested on a false premise.\" 526 U. S., at 204. Later decisions showed that States can impose reasonable and nondiscriminatory regulations on an Indian tribe’s treaty-based hunting, fishing, and gathering rights on state land when necessary for conservation. Id., at 204–205 (citing Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 682 (1979); Antoine v. Washington, 420 U. S. 194, 207–208 (1975); Puyallup Tribe v. Department of Game of Wash., 391 U. S. 392, 398 (1968)). \"[B]ecause treaty rights are reconcilable with state sovereignty over natural resources,\" the Mille Lacs Court concluded, there is no reason to find statehood itself sufficient \"to extinguish Indian treaty rights to hunt, fish, and gather on land within state boundaries.\" 526 U. S., at 205. In lieu of adopting the equal-footing analysis, the Court instead drew on numerous decisions issued since Race Horse to explain that Congress \"must clearly express\" any intent to abrogate Indian treaty rights. 526 U. S., at 202 (citing United States v. Dion, 476 U. S. 734, 738–740 (1986); Fishing Vessel Assn., 443 U. S., at 690; Menominee Tribe v. United States, 391 U. S. 404, 413 (1968)). The Court found no such \"‘clear evidence’\" in the Act admitting Minnesota to the Union, which was \"silent\" with regard to Indian treaty rights. 526 U. S., at 203. The Mille Lacs Court then turned to what it referred to as Race Horse’s \"alternative holding\" that the rights in the Shoshone-Bannock Treaty \"were not intended to survive Wyoming’s statehood.\" 526 U. S., at 206. The Court observed that Race Horse could be read to suggest that treaty rights only survive statehood if the rights are \"‘\"of such a nature as to imply their perpetuity,\"’\" rather than \"‘temporary and precarious.’\" 526 U. S., at 206. The Court rejected such an approach. The Court found the \"‘temporary and precarious’\" language \"too broad to be useful,\" given that almost any treaty rights—which Congress may unilaterally repudiate, see Dion, 476 U. S., at 738—could be described in those terms. 526 U. S., at 206– 207. Instead, Mille Lacs framed Race Horse as inquiring into whether the Senate \"intended the rights secured by the . . . Treaty to survive statehood.\" 526 U. S., at 207. Applying this test, Mille Lacs concluded that statehood did not extinguish the Chippewa bands’ treaty rights. The Chippewa Treaty itself defined the specific \"circumstances under which the rights would terminate,\" and there was no suggestion that statehood would satisfy those circumstances. Ibid. Maintaining its focus on the treaty’s language, Mille Lacs distinguished the Chippewa Treaty before it from the Shoshone-Bannock Treaty at issue in Race Horse. Specifically, the Court noted that the Shoshone-Bannock Treaty, unlike the Chippewa Treaty, \"tie[d] the duration of the rights to the occurrence of some clearly contemplated event[s]\"—i.e., to whenever the hunting grounds would cease to \"remai[n] unoccupied and owned by the United States.\" 526 U. S., at 207. In drawing that distinction, however, the Court took care to emphasize that the treaty termination analysis turns on the events enumerated in the \"Treaty itself.\" Ibid. Insofar as the Race Horse Court determined that the Shoshone-Bannock Treaty was \"impliedly repealed,\" Mille Lacs disavowed that earlier holding. 526 U. S., at 207. \"Treaty rights,\" the Court clarified, \"are not impliedly terminated upon statehood.\" Ibid. The Court further explained that \"[t]he Race Horse Court’s decision to the contrary\"—that Wyoming’s statehood did imply repeal of Indian treaty rights—\"was informed by\" that Court’s erroneous conclusion \"that the Indian treaty rights were inconsistent with state sovereignty over natural resources.\" Id., at 207–208. In sum, Mille Lacs upended both lines of reasoning in Race Horse. The case established that the crucial inquiry for treaty termination analysis is whether Congress has expressly abrogated an Indian treaty right or whether a termination point identified in the treaty itself has been satisfied. Statehood is irrelevant to this analysis unless a statehood Act otherwise demonstrates Congress’ clear intent to abrogate a treaty, or statehood appears as a termination point in the treaty. See 526 U. S., at 207. \"[T]here is nothing inherent in the nature of reserved treaty rights to suggest that they can be extinguished by implication at statehood.\" Ibid. Even Wyoming concedes that the Court has rejected the equal-footing reasoning in Race Horse, Brief for Respondent 26, but the State contends that Mille Lacs reaffirmed the alternative holding in Race Horse that the ShoshoneBannock Treaty right (and thus the identically phrased right in the 1868 Treaty with the Crow Tribe) was intended to end at statehood. We are unpersuaded. As explained above, although the decision in Mille Lacs did not explicitly say that it was overruling the alternative ground in Race Horse, it is impossible to harmonize Mille Lacs’ analysis with the Court’s prior reasoning in Race Horse.1 We thus formalize what is evident in Mille Lacs itself. While Race Horse \"was not expressly overruled\" in Mille Lacs, \"it must be regarded as retaining no vitality\" after that decision. Limbach v. Hooven & Allison Co., 466 U. S. 353, 361 (1984). To avoid any future confusion, we make clear today that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood. B Because this Court’s intervening decision in Mille Lacs repudiated the reasoning on which the Tenth Circuit relied in Repsis, Repsis does not preclude Herrera from arguing that the 1868 Treaty right survived Wyoming’s statehood. Under the doctrine of issue preclusion, \"a prior judgment . . . foreclos[es] successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment.\" New Hampshire v. Maine, 532 U. S. 742, 748–749 (2001). Even when the elements of issue preclusion are met, however, an exception may be warranted if there has been an intervening \"‘change in [the] applicable legal context.’\" Bobby v. Bies, 556 U. S. 825, 834 (2009) (quoting Restatement (Second) of Judgments §28, Comment c (1980)); see Limbach, 466 U. S., at 363 (refusing to find a party bound by \"an early decision based upon a now repudiated legal doctrine\"); see also Montana v. United States, 440 U. S. 147, 155 (1979) (asking \"whether controlling facts or legal principles ha[d] changed significantly\" since a judgment before giving it preclusive effect); id., at 157–158 (explaining that a prior judgment was conclusive \"[a]bsent significant changes in controlling facts or legal principles\" since the judgment); Commissioner v. Sunnen, 333 U. S. 591, 599 (1948) (issue preclusion \"is designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally\"). The change-in-law exception recognizes that applying issue preclusion in changed circumstances may not \"advance the equitable administration of the law.\" Bobby, 556 U. S., at 836–837. We conclude that a change in law justifies an exception to preclusion in this case. There is no question that the Tenth Circuit in Repsis relied on this Court’s binding decision in Race Horse to conclude that the 1868 Treaty right terminated upon Wyoming’s statehood. See 73 F. 3d, at 994. When the Tenth Circuit reached its decision in Repsis, it had no authority to disregard this Court’s holding in Race Horse and no ability to predict the analysis this Court would adopt in Mille Lacs. Mille Lacs repudiated Race Horse’s reasoning. Although we recognize that it may be difficult at the margins to discern whether a particular legal shift warrants an exception to issue preclusion, this is not a marginal case. At a minimum, a repudiated decision does not retain preclusive force. See Limbach, 466 U. S., at 363.3 C We now consider whether, applying Mille Lacs, Wyoming’s admission to the Union abrogated the Crow Tribe’s off-reservation treaty hunting right. It did not. First, the Wyoming Statehood Act does not show that Congress intended to end the 1868 Treaty hunting right. If Congress seeks to abrogate treaty rights, \"it must clearly express its intent to do so.\" Mille Lacs, 526 U. S., at 202. \"There must be ‘clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.’\" Id., at 202–203 (quoting Dion, 476 U. S., at 740); see Menominee Tribe, 391 U. S., at 412. Like the Act discussed in Mille Lacs, the Wyoming Statehood Act \"makes no mention of Indian treaty rights\" and \"provides no clue that Congress considered the reserved rights of the [Crow Tribe] and decided to abrogate those rights when it passed the Act.\" Cf. Mille Lacs, 526 U. S., at 203; see Wyoming Statehood Act, 26 Stat. 222. There simply is no evidence that Congress intended to abrogate the 1868 Treaty right through the Wyoming Statehood Act, much less the \"‘clear evidence’\" this Court’s precedent requires. Mille Lacs, 526 U. S., at 203.4 Nor is there any evidence in the treaty itself that Congress intended the hunting right to expire at statehood, or that the Crow Tribe would have understood it to do so. A treaty is \"essentially a contract between two sovereign nations.\" Fishing Vessel Assn., 443 U. S., at 675. Indian treaties \"must be interpreted in light of the parties’ intentions, with any ambiguities resolved in favor of the Indians,\" Mille Lacs, 526 U. S., at 206, and the words of a treaty must be construed \"‘in the sense in which they would naturally be understood by the Indians,’\" Fishing Vessel Assn., 443 U. S., at 676. If a treaty \"itself defines the circumstances under which the rights would terminate,\" it is to those circumstances that the Court must look to determine if the right ends at statehood. Mille Lacs, 526 U. S., at 207. Just as in Mille Lacs, there is no suggestion in the text of the 1868 Treaty with the Crow Tribe that the parties intended the hunting right to expire at statehood. The treaty identifies four situations that would terminate the right: (1) the lands are no longer \"unoccupied\"; (2) the lands no longer belong to the United States; (3) game can no longer \"be found thereon\"; and (4) the Tribe and nonIndians are no longer at \"peace . . . on the borders of the hunting districts.\" Art. IV, 15 Stat. 650. Wyoming’s statehood does not appear in this list. Nor is there any hint in the treaty that any of these conditions would necessarily be satisfied at statehood. See Mille Lacs, 526 U. S., at 207. The historical record likewise does not support the State’s position. See Choctaw Nation v. United States, 318 U. S. 423, 431–432 (1943) (explaining that courts \"may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties\" to determine a treaty’s meaning). Crow Tribe leaders emphasized the importance of the hunting right in the 1867 negotiations, see, e.g., Proceedings 88, and Commissioner Taylor assured them that the Tribe would have \"the right to hunt upon [the ceded land] as long as the game lasts,\" id., at 86. Yet despite the apparent importance of the hunting right to the negotiations, Wyoming points to no evidence that federal negotiators ever proposed that the right would end at statehood. This silence is especially telling because five States encompassing lands west of the Mississippi River—Nebraska, Nevada, Kansas, Oregon, and Minnesota—had been admitted to the Union in just the preceding decade. See ch. 36, 14 Stat. 391 (Nebraska, Feb. 9, 1867); Presidential Proclamation No. 22, 13 Stat. 749 (Nevada, Oct. 31, 1864); ch. 20, 12 Stat. 126 (Kansas, Jan. 29, 1861); ch. 33, 11 Stat. 383 (Oregon, Feb. 14, 1859); ch. 31, 11 Stat. 285 (Minnesota, May 11, 1858). Federal negotiators had every reason to bring up statehood if they intended it to extinguish the Tribe’s hunting rights. In the face of this evidence, Wyoming nevertheless contends that the 1868 Treaty expired at statehood pursuant to the Mille Lacs analysis. Wyoming does not argue that the legal act of Wyoming’s statehood abrogated the treaty right, and it cannot contend that statehood is explicitly identified as a treaty expiration point. Instead, Wyoming draws on historical sources to assert that statehood, as a practical matter, marked the arrival of \"civilization\" in the Wyoming Territory and thus rendered all the lands in the State occupied. Brief for Respondent 48. This claim cannot be squared with Mille Lacs. Wyoming’s arguments boil down to an attempt to read the treaty impliedly to terminate at statehood, precisely as Mille Lacs forbids. The State sets out a potpourri of evidence that it claims shows statehood in 1890 effectively coincided with the disappearance of the wild frontier: for instance, that the buffalo were extinct by the mid-1870s; that by 1880, Indian Department regulations instructed Indian agents to confine tribal members \"‘wholly within the limits of their respective reservations’\"; and that the Crow Tribe stopped hunting off-reservation altogether in 1886. Brief for Respondent 47 (quoting §237 Instructions to Indian Agents (1880), as published in Regulations of the Indian Dept. §492 (1884)). Herrera contradicts this account, see Reply Brief for Petitioner 5, n. 3, and the historical record is by no means clear. For instance, game appears to have persisted for longer than Wyoming suggests. See Dept. of Interior, Ann. Rep. of the Comm’r of Indian Affairs 495 (1873) (Black Foot: \"On the other side of the river below, there are plenty of buffalo; on the mountains are plenty of elk and black-tail deer; and white-tail deer are plenty at the foot of the mountain\"). As for the Indian Department Regulations, there are reports that a group of Crow Tribe members \"regularly hunted along the Little Bighorn River\" even after the regulation the State cites was in effect. Hoxie, Parading Through History, at 26. In 1889, the Office of Indian Affairs wrote to U. S. Indian Agents in the Northwest that \"[f]requent complaints have been made to this Department that Indians are in the habit of leaving their reservations for the purpose of hunting.\" 28 Cong. Rec. 6231 (1896). Even assuming that Wyoming presents an accurate historical picture, the State’s mode of analysis is severely flawed. By using statehood as a proxy for occupation, Wyoming subverts this Court’s clear instruction that treaty-protected rights \"are not impliedly terminated upon statehood.\" Mille Lacs, 526 U. S., at 207. Finally, to the extent that Wyoming seeks to rely on this same evidence to establish that all land in Wyoming was functionally \"occupied\" by 1890, its arguments fall outside the question presented and are unpersuasive in any event. As explained below, the Crow Tribe would have understood occupation to denote some form of residence or settlement. See infra, at 19–20. Furthermore, Wyoming cannot rely on Race Horse to equate occupation with statehood, because that case’s reasoning rested on the flawed belief that statehood could not coexist with a continuing treaty right. See Race Horse, 163 U. S., at 514; Mille Lacs, 526 U. S., at 207–208. Applying Mille Lacs, this is not a hard case. The Wyoming Statehood Act did not abrogate the Crow Tribe’s hunting right, nor did the 1868 Treaty expire of its own accord at that time. The treaty itself defines the circumstances in which the right will expire. Statehood is not one of them. III We turn next to the question whether the 1868 Treaty right, even if still valid after Wyoming’s statehood, does not protect hunting in Bighorn National Forest because the forest lands are \"occupied.\" We agree with Herrera and the United States that Bighorn National Forest did not become categorically \"occupied\" within the meaning of the 1868 Treaty when the national forest was created. Treaty analysis begins with the text, and treaty terms are construed as \"‘they would naturally be understood by the Indians.’\" Fishing Vessel Assn., 443 U. S., at 676. Here it is clear that the Crow Tribe would have understood the word \"unoccupied\" to denote an area free of residence or settlement by non-Indians. That interpretation follows first and foremost from several cues in the treaty’s text. For example, Article IV of the 1868 Treaty made the hunting right contingent on peace \"among the whites and Indians on the borders of the hunting districts,\" thus contrasting the unoccupied hunting districts with areas of white settlement. 15 Stat. 650. The treaty elsewhere used the word \"occupation\" to refer to the Tribe’s residence inside the reservation boundaries, and referred to the Tribe members as \"settlers\" on the new reservation. Arts. II, VI, id., at 650–651. The treaty also juxtaposed occupation and settlement by stating that the Tribe was to make \"no permanent settlement\" other than on the new reservation, but could hunt on the \"unoccupied lands\" of the United States. Art. IV, id., at 650. Contemporaneous definitions further support a link between occupation and settlement. See W. Anderson, A Dictionary of Law 725 (1889) (defining \"occupy\" as \"[t]o hold in possession; to hold or keep for use\" and noting that the word \"[i]mplies actual use, possession or cultivation by a particular person\"); id., at 944 (defining \"settle\" as \"[t]o establish one’s self upon; to occupy, reside upon\"). Historical evidence confirms this reading of the word \"unoccupied.\" At the treaty negotiations, Commissioner Taylor commented that \"settlements ha[d] been made upon [Crow Tribe] lands\" and that \"white people [were] rapidly increasing and . . . occupying all the valuable lands.\" Proceedings 86. It was against this backdrop of white settlement that the United States proposed to buy \"the right to use and settle\" the ceded lands, retaining for the Tribe the right to hunt. Ibid. A few years after the 1868 Treaty signing, a leader of the Board of Indian Commissioners confirmed the connection between occupation and settlement, explaining that the 1868 Treaty permitted the Crow Tribe to hunt in an area \"as long as there are any buffalo, and as long as the white men are not [in that area] with farms.\" Dept. of Interior, Ann. Rep. of the Comm’r of Indian Affairs 500. Given the tie between the term \"unoccupied\" and a lack of non-Indian settlement, it is clear that President Cleveland’s proclamation creating Bighorn National Forest did not \"occupy\" that area within the treaty’s meaning. To the contrary, the President \"reserved\" the lands \"from entry or settlement.\" Presidential Proclamation No. 30, 29 Stat. 909. The proclamation gave \"[w]arning . . . to all persons not to enter or make settlement upon the tract of land reserved by th[e] proclamation.\" Id., at 910. If anything, this reservation made Bighorn National Forest more hospitable, not less, to the Crow Tribe’s exercise of the 1868 Treaty right. Wyoming’s counterarguments are unavailing. The State first asserts that the forest became occupied through the Federal Government’s \"exercise of dominion and control\" over the forest territory, including federal regulation of those lands. Brief for Respondent 56–60. But as explained, the treaty’s text and the historical record suggest that the phrase \"unoccupied lands\" had a specific meaning to the Crow Tribe: lack of settlement. The proclamation of a forest reserve withdrawing land from settlement would not categorically transform the territory into an area resided on or settled by non-Indians; quite the opposite. Nor would the restrictions on hunting in national forests that Wyoming cites. See Appropriations Act of 1899, ch. 424, 30 Stat. 1095; 36 CFR §§241.2, 241.3 (Supp. 1941); §261.10(d)(1) (2018). Wyoming also claims that exploitative mining and logging of the forest lands prior to 1897 would have caused the Crow Tribe to view the Bighorn Mountains as occupied. But the presence of mining and logging operations did not amount to settlement of the sort that the Tribe would have understood as rendering the forest occupied. In fact, the historical source on which Wyoming primarily relies indicates that there was \"very little\" settlement of Bighorn National Forest around the time the forest was created. Dept. of Interior, Nineteenth Ann. Rep. of the U. S. Geological Survey 167 (1898). Considering the terms of the 1868 Treaty as they would have been understood by the Crow Tribe, we conclude that the creation of Bighorn National Forest did not remove the forest lands, in their entirety, from the scope of the treaty. IV Finally, we note two ways in which our decision is limited. First, we hold that Bighorn National Forest is not categorically occupied, not that all areas within the forest are unoccupied. On remand, the State may argue that the specific site where Herrera hunted elk was used in such a way that it was \"occupied\" within the meaning of the 1868 Treaty. See State v. Cutler, 109 Idaho 448, 451, 708 P. 2d 853, 856 (1985) (stating that the Federal Government may not be foreclosed from using land in such a way that the Indians would have considered it occupied). Second, the state trial court decided that Wyoming could regulate the exercise of the 1868 Treaty right \"in the interest of conservation.\" Nos. CT–2015–2687, CT–2015–2688, App. to Pet. for Cert. 39–41; see Antoine, 420 U. S., at 207. The appellate court did not reach this issue. No. 2016–242, App. to Pet. for Cert. 14, n. 3. On remand, the State may press its arguments as to why the application of state conservation regulations to Crow Tribe members exercising the 1868 Treaty right is necessary for conservation. We do not pass on the viability of those arguments today. The judgment of the Wyoming District Court of the Fourth Judicial District, Sheridan County, is vacated, and the case is remanded for further proceedings not inconsistent with this opinion."},
{"docket_number": "17-290", "syllabus": "Petitioner Merck Sharp & Dohme Corp. manufactures Fosamax, a drug that treats and prevents osteoporosis in postmenopausal women. However, the mechanism through which Fosamax treats and prevents osteoporosis may increase the risk that patients will suffer \"atypical femoral fractures,\" that is, a rare type of complete, lowenergy fracture that affects the thigh bone. When the Food and Drug Administration first approved of the manufacture and sale of Fosamax in 1995, the Fosamax label did not warn of the then-speculative risk of atypical femoral fractures associated with the drug. But stronger evidence connecting Fosamax to atypical femoral fractures developed after 1995. And the FDA ultimately ordered Merck to add a warning about atypical femoral fractures to the Fosamax label in 2011. Respondents are more than 500 individuals who took Fosamax and suffered atypical femoral fractures between 1999 and 2010. Respondents sued Merck seeking tort damages on the ground that state law imposed upon Merck a legal duty to warn respondents and their doctors about the risk of atypical femoral fractures associated with using Fosamax. Merck, in defense, argued that respondents’ statelaw failure-to-warn claims should be dismissed as pre-empted by federal law. Merck conceded that the FDA regulations would have permitted Merck to try to change the label to add a warning before 2010, but Merck asserted that the FDA would have rejected that attempt. In particular, Merck claimed that the FDA’s rejection of Merck’s 2008 attempt to warn of a risk of \"stress fractures\" showed that the FDA would also have rejected any attempt by Merck to warn of the risk of atypical femoral fractures associated with the drug. The District Court agreed with Merck’s pre-emption argument and granted summary judgment to Merck, but the Third Circuit vacated and remanded. The Court of Appeals recognized that its pre-emption analysis was controlled by this Court’s decision in Wyeth v. Levine, 555 U. S. 555, which held that a state-law failure-to-warn claim is pre-empted where there is \"clear evidence\" that the FDA would not have approved a change to the label. The Court of Appeals, however, suggested that the \"clear evidence\" standard had led to varying lower court applications and that it would be helpful for this Court to \"clarif[y] or buil[d] out the doctrine.\" 852 F. 3d 268, 284. Held: 1. \"Clear evidence\" is evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning. Pp. 9–15. (a) The Wyeth Court undertook a careful review of the history of federal regulation of drugs and drug labeling and found both a reluctance by Congress to displace state laws that would penalize drug manufacturers for failing to warn consumers of the risks associated with their drugs and an insistence by Congress that drug manufacturers bear the responsibility for the content of their drug labels. Accordingly, this Court held in Wyeth that \"absent clear evidence that the FDA would not have approved a change\" to the label, the Court \"will not conclude that it was impossible . . . to comply with both federal and state requirements.\" 555 U. S., at 571. Applying that rule to the facts of that case, the Court said that Wyeth’s evidence of preemption fell short for two reasons. First, the record did not show that Wyeth \"supplied the FDA with an evaluation or analysis concerning the specific dangers\" that would have merited the warning. Id., at 572–573. And second, the record did not show that Wyeth \"attempted to give the kind of warning required by [state law] but was prohibited from doing so by the FDA.\" Ibid., and n. 5. Pp. 10–13. (b) Thus, in a case like Wyeth, showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug’s label to include that warning. These conclusions flow from this Court’s precedents on impossibility pre-emption and the statutory and regulatory scheme that the Court reviewed in Wyeth. See 555 U. S., at 578. In particular, this Court has refused to find clear evidence of impossibility where the laws of one sovereign permit an activity that the laws of the other sovereign restrict or even prohibit. And as explained in Wyeth, FDA regulations permit drug manufacturers to change a label to \"reflect newly acquired information\" if the changes \"add or strengthen a . . . warning\" for which there is \"evidence of a causal association.\" 21 CFR §314.70(c)(6)(iii)(A). Pp. 13–14. (c) The only agency actions that can determine the answer to the pre-emption question are agency actions taken pursuant to the FDA’s congressionally delegated authority. The Supremacy Clause grants \"supreme\" status only to the \"the Laws of the United States.\" U. S. Const., Art. VI, cl. 2. And pre-emption takes place \" ‘only when and if [the agency] is acting within the scope of its congressionally delegated authority.’ \" New York v. FERC, 535 U. S. 1, 18 (some alterations omitted). P 15. 2. The question of agency disapproval is primarily one of law for a judge to decide. The question often involves the use of legal skills to determine whether agency disapproval fits facts that are not in dispute. Moreover, judges, rather than lay juries, are better equipped to evaluate the nature and scope of an agency’s determination, and are better suited to understand and to interpret agency decisions in light of the governing statutory and regulatory context. While contested brute facts will sometimes prove relevant to a court’s legal determination about the meaning and effect of an agency decision, such factual questions are subsumed within an already tightly circumscribed legal analysis and do not warrant submission alone or together with the larger pre-emption question to a jury. Pp. 15–17. 852 F. 3d 268, vacated and remanded.", "opinion": "When Congress enacted the Federal Food, Drug, and Cosmetic Act, ch. 675, 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq., it charged the Food and Drug Administration with ensuring that prescription drugs are \"safe for use under the conditions prescribed, recommended, or suggested\" in the drug’s \"labeling.\" §355(d). When the FDA exercises this authority, it makes careful judgments about what warnings should appear on a drug’s label for the safety of consumers. For that reason, we have previously held that \"clear evidence\" that the FDA would not have approved a change to the drug’s label pre-empts a claim, grounded in state law, that a drug manufacturer failed to warn consumers of the change-related risks associated with using the drug. See Wyeth v. Levine, 555 U. S. 555, 571 (2009). We here determine that this question of pre-emption is one for a judge to decide, not a jury. We also hold that \"clear evidence\" is evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning. I The central issue in this case concerns federal preemption, which as relevant here, takes place when it is \"‘impossible for a private party to comply with both state and federal requirements.’\" Mutual Pharmaceutical Co. v. Bartlett, 570 U. S. 472, 480 (2013). See also U. S. Const., Art. VI, cl. 2. The state law that we consider is state common law or state statutes that require drug manufacturers to warn drug consumers of the risks associated with drugs. The federal law that we consider is the statutory and regulatory scheme through which the FDA regulates the information that appears on brand-name prescription drug labels. The alleged conflict between state and federal law in this case has to do with a drug that was manufactured by petitioner Merck Sharp & Dohme and was administered to respondents without a warning of certain associated risks. A The FDA regulates the safety information that appears on the labels of prescription drugs that are marketed in the United States. 21 U. S. C. §355(b)(1)(F); 21 CFR §201.57(a) (2018). Although we commonly understand a drug’s \"label\" to refer to the sticker affixed to a prescription bottle, in this context the term refers more broadly to the written material that is sent to the physician who prescribes the drug and the written material that comes with the prescription bottle when the drug is handed to the patient at the pharmacy. 21 U. S. C. §321(m). These (often lengthy) package inserts contain detailed information about the drug’s medical uses and health risks. §355(b)(1)(F); 21 CFR §201.57(a). FDA regulations set out requirements for the content, the format, and the order of the safety information on the drug label. §201.57(c). Those regulations require drug labels to include, among other things: (1) prominent \"boxed\" warnings about risks that may lead to death or serious injury; (2) contraindications describing any situation in which the drug should not be used because the risk of use outweighs any therapeutic benefit; (3) warnings and precautions about other potential safety hazards; and (4) any adverse reactions for which there is some basis to believe a causal relationship exists between the drug and the occurrence of the adverse event. Ibid. As those requirements make clear, the category in which a particular risk appears on a drug label is an indicator of the likelihood and severity of the risk. The hierarchy of label information is designed to \"prevent overwarning\" so that less important information does not \"overshadow\" more important information. 73 Fed. Reg. 49605–49606 (2008). It is also designed to exclude \"[e]xaggeration of risk, or inclusion of speculative or hypothetical risks,\" that \"could discourage appropriate use of a beneficial drug.\" Id., at 2851. Prospective drug manufacturers work with the FDA to develop an appropriate label when they apply for FDA approval of a new drug. 21 U. S. C. §§355(a), 355(b), 355(d)(7); 21 CFR §314.125(b)(6). But FDA regulations also acknowledge that information about drug safety may change over time, and that new information may require changes to the drug label. §§314.80(c), 314.81(b)(2)(i). Drug manufacturers generally seek advance permission from the FDA to make substantive changes to their drug labels. However, an FDA regulation called the \"changes being effected\" or \"CBE\" regulation permits drug manufacturers to change a label without prior FDA approval if the change is designed to \"add or strengthen a . . . warning\" where there is \"newly acquired information\" about the \"evidence of a causal association\" between the drug and a risk of harm. 21 CFR §314.70(c)(6)(iii)(A). B Petitioner Merck Sharp & Dohme manufactures Fosamax, a drug that treats and prevents osteoporosis in postmenopausal women. App. 192; In re Fosamax (Alendronate Sodium) Products Liability Litigation, 852 F. 3d 268, 271, 274–275 (CA3 2017). Fosamax belongs to a class of drugs called \"bisphosphonates.\" Fosamax and other bisphosphonates work by affecting the \"bone remodeling process,\" that is, the process through which bones are continuously broken down and built back up again. App. 102, 111. For some postmenopausal women, the two parts of the bone remodeling process fall out of sync; the body removes old bone cells faster than it can replace them. That imbalance can lead to osteoporosis, a disease that is characterized by low bone mass and an increased risk of bone fractures. Fosamax (like other bisphosphonates) slows the breakdown of old bone cells and thereby helps postmenopausal women avoid osteoporotic fractures. Id., at 102. However, the mechanism through which Fosamax decreases the risk of osteoporotic fractures may increase the risk of a different type of fracture. Id., at 400–444, 661– 663. That is because all bones—healthy and osteoporotic alike—sometimes develop microscopic cracks that are not due to any trauma, but are instead caused by the mechanical stress of everyday activity. Id., at 102. Those so-called \"stress fractures\" ordinarily heal on their own through the bone remodeling process. But, by slowing the breakdown of old bone cells, Fosamax and other bisphosphonates may cause stress fractures to progress to complete breaks that cause great pain and require surgical intervention to repair. Id., at 106–109, 139, 144–145. When that rare type of complete, low-energy fracture affects the thigh bone, it is called an \"atypical femoral fracture.\" Id., at 101. The Fosamax label that the FDA approved in 1995 did not warn of the risk of atypical femoral fractures. 852 F. 3d, at 274–275. At that time, Merck’s scientists were aware of at least a theoretical risk of those fractures. Indeed, as far back as 1990 and 1991, when Fosamax was undergoing preapproval clinical trials, Merck scientists expressed concern in internal discussions that Fosamax could inhibit bone remodeling to such a \"‘profound’\" degree that \"inadequate repair may take place\" and \"‘microfractures would not heal.’\" App. 111–113. When Merck applied to the FDA for approval of Fosamax, Merck brought those theoretical considerations to the FDA’s attention. 852 F. 3d, at 274–275. But, perhaps because the concerns were only theoretical, the FDA approved Fosamax’s label without requiring any mention of this risk. Ibid. Evidence connecting Fosamax to atypical femoral fractures developed after 1995. Merck began receiving adverse event reports from the medical community indicating that long-term Fosamax users were suffering atypical femoral fractures. App. 122–125. For example, Merck received a report from a doctor who said that hospital staff had begun calling atypical femoral fractures the \"‘Fosamax Fracture’\" because \"‘100% of patients in his practice who have experienced femoral fractures (without being hit by a taxicab), were taking Fosamax . . . for over 5 years. ’\" Id., at 126. Merck performed a statistical analysis of Fosamax adverse event reports, concluding that these reports revealed a statistically significant incidence of femur fractures. 3 App. in No. 14–1900 (CA3), pp. A1272– A1273, A1443. And about the same time, Merck began to see numerous scholarly articles and case studies documenting possible connections between long-term Fosamax use and atypical femoral fractures. App. 106–110, 116–122. In 2008, Merck applied to the FDA for preapproval to change Fosamax’s label to add language to both the \"Adverse Reaction[s]\" and the \"Precaution[s]\" sections of the label. Id., at 670. In particular, Merck proposed adding a reference to \"‘low-energy femoral shaft fracture’\" in the Adverse Reactions section, and cross-referencing a longer discussion in the Precautions section that focused on the risk of stress fractures associated with Fosamax. Id., at 728. The FDA approved the addition to the Adverse Reactions section, but rejected Merck’s proposal to warn of a risk of \"stress fractures.\" Id., at 511–512. The FDA explained that Merck’s \"justification\" for the proposed change to the Precautions section was \"inadequate,\" because \"[i]dentification of ‘stress fractures’ may not be clearly related to the atypical subtrochanteric fractures that have been reported in the literature.\" Id., at 511. The FDA invited Merck to \"resubmit\" its application and to \"fully address all the deficiencies listed.\" Id., at 512; see 21 CFR §314.110(b). But Merck instead withdrew its application and decided to make the changes to the Adverse Reactions section through the CBE process. App. 654–660. Merck made no changes to the Precautions section at issue here. Id., at 274. A warning about \"atypical femoral fractures\" did not appear on the Fosamax label until 2011, when the FDA ordered that change based on its own analyses. Id., at 246–252, 526–534. Merck was initially resistant to the change, proposing revised language that, once again, referred to the risk of \"stress fractures.\" Id., at 629–634. But the FDA, once again, rejected that language. And this time, the FDA explained that \"the term ‘stress fracture’ was considered and was not accepted\" because, \"for most practitioners, the term ‘stress fracture’ represents a minor fracture and this would contradict the seriousness of the atypical femoral fractures associated with bisphosphonate use.\" Id., at 566. In January 2011, Merck and the FDA ultimately agreed upon adding a three-paragraph discussion of atypical femoral fractures to the Warnings and Precautions section of the Fosamax label. Id., at 223–224. The label now refers to the fractures five times as \"atypical\" without using the term \"stress fracture.\" Ibid. C The respondents here are more than 500 individuals who took Fosamax and who suffered atypical femoral fractures between 1999 and 2010. Brief for Respondents 7. Respondents, invoking federal diversity jurisdiction, filed separate actions seeking tort damages on the ground that, during the relevant period, state law imposed upon Merck a legal duty to warn them and their doctors about the risk of atypical femoral fractures associated with using Fosamax. Id., at 1. One respondent, for example, filed a complaint alleging that she took Fosamax for roughly 10 years and suffered an atypical femoral fracture. One day in 2009, when the respondent was 70 years old, she turned to unlock the front door of her house, heard a popping sound, and suddenly felt her left leg give out beneath her. She needed surgery, in which doctors repaired her leg with a rod and screws. She explained she would not have used Fosamax for so many years if she had known that she might suffer an atypical femoral fracture as a result. See id., at 18–19. Merck, in defense, argued that respondents’ state-law failure-to-warn claims should be dismissed as pre-empted by federal law. Both Merck and the FDA have long been aware that Fosamax could theoretically increase the risk of atypical femoral fractures. But for some period of time between 1995 (when the FDA first approved a drug label for Fosamax) and 2010 (when the FDA decided to require Merck to add a warning about atypical femoral fractures to Fosamax’s label), both Merck and the FDA were unsure whether the developing evidence of a causal link between Fosamax and atypical femoral fractures was strong enough to require adding a warning to the Fosamax drug label. Merck conceded that the FDA’s CBE regulation would have permitted Merck to try to change the label to add a warning before 2010, but Merck asserted that the FDA would have rejected that attempt. In particular, Merck pointed to the FDA’s rejection of Merck’s 2008 attempt to amend the Fosamax label to warn of the risk of \"stress fractures\" associated with Fosamax. On that basis, Merck claimed that federal law prevented Merck from complying with any state-law duty to warn the respondents of the risk of atypical femoral fractures associated with Fosamax. The District Court agreed with Merck’s pre-emption argument and granted summary judgment to Merck, In re Fosamax (Alendronate Sodium): Products Liability Litigation, 2014 WL 1266994, *17 (D NJ, Mar. 22, 2017), but the Court of Appeals vacated and remanded, 852 F. 3d, at 302. The Court of Appeals concluded that its pre-emption analysis was controlled by this Court’s decision in Wyeth. Ibid. The Court of Appeals understood that case as making clear that a failure-to-warn claim grounded in state law is pre-empted where there is \"‘clear evidence that the FDA would not have approved a change to the . . . label.’\" Id., at 280 (quoting Wyeth, 555 U. S., at 571). The Court of Appeals, however, suggested that this statement had led to varying lower court applications and that it would be helpful for this Court to \"clarif[y] or buil[d] out the doctrine.\" 852 F. 3d, at 284. In attempting to do so itself, the Court of Appeals held that \"the Supreme Court intended to announce a standard of proof when it used the term ‘clear evidence’ in Wyeth.\" Ibid. That is, the Court of Appeals believed that \"[t]he term ‘clear evidence’ . . . does not refer directly to the type of facts that a manufacturer must show, or to the circumstances in which preemption will be appropriate.\" Id., at 285. \"Rather, it specifies how difficult it will be for the manufacturer to convince the factfinder that the FDA would have rejected a proposed label change.\" Ibid. And in the Court of Appeals’ view, \"for a defendant to establish a preemption defense under Wyeth, the factfinder must conclude that it is highly probable that the FDA would not have approved a change to the drug’s label.\" Id., at 286. Moreover and importantly, the Court of Appeals also held that \"whether the FDA would have rejected a proposed label change is a question of fact that must be answered by a jury.\" Ibid. Merck filed a petition for a writ of certiorari. Merck’s petition asked the Court to decide whether Merck’s case and others like it \"must . . . go to a jury\" to determine whether the FDA, in effect, has disapproved a state-lawrequired labeling change. In light of differences and uncertainties among the courts of appeals and state supreme courts in respect to the application of Wyeth, we granted certiorari. See, e.g., Mason v. SmithKline Beecham Corp., 596 F. 3d 387, 391 (CA7 2010) (\"The Supreme Court . . . did not clarify what constitutes ‘clear evidence’\"); Reckis v. Johnson & Johnson, 471 Mass. 272, 286, 28 N. E. 3d 445, 457 (2015) (\"Wyeth did not define ‘clear evidence’ . . . \" (some internal quotation marks omitted)). II We stated in Wyeth v. Levine that state law failure-towarn claims are pre-empted by the Federal Food, Drug, and Cosmetic Act and related labeling regulations when there is \"clear evidence\" that the FDA would not have approved the warning that state law requires. 555 U. S., at 571. We here decide that a judge, not the jury, must decide the pre-emption question. And we elaborate Wyeth’s requirements along the way. A We begin by describing Wyeth. In that case, the plaintiff developed gangrene after a physician’s assistant injected her with Phenergan, an antinausea drug. The plaintiff brought a state-law failure-to-warn claim against Wyeth, the drug’s manufacturer, for failing to provide an adequate warning about the risks that accompany various methods of administering the drug. In particular, the plaintiff claimed that directly injecting Phenergan into a patient’s vein (the \"IV-push\" method of administration) creates a significant risk of catastrophic consequences. And those consequences could be avoided by introducing the drug into a saline solution that slowly descends into a patient’s vein (the \"IV-drip\" method of administration). A jury concluded that Wyeth’s warning label was inadequate, and that the label’s inadequacy caused the plaintiff ’s injury. On appeal, Wyeth argued that the plaintiff ’s state-law failure-to-warn claims were pre-empted because it was impossible for Wyeth to comply with both state law duties and federal labeling obligations. The Vermont Supreme Court rejected Wyeth’s pre-emption claim. Id., at 563. We too considered Wyeth’s pre-emption argument, and we too rejected it. In rejecting Wyeth’s argument, we undertook a careful review of the history of federal regulation of drugs and drug labeling. Id., at 566–568. In doing so, we \"assum[ed] that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.\" Id., at 565 (internal quotation marks omitted). And we found nothing within that history to indicate that the FDA’s power to approve or to disapprove labeling changes, by itself, pre-empts state law. Rather, we concluded that Congress enacted the FDCA \"to bolster consumer protection against harmful products;\" that Congress provided no \"federal remedy for consumers harmed by unsafe or ineffective drugs\"; that Congress was \"awar[e] of the prevalence of state tort litigation;\" and that, whether Congress’ general purpose was to protect consumers, to provide safety-related incentives to manufacturers, or both, language, history, and purpose all indicate that \"Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.\" Id., at 574–575 (emphasis added). See also id., at 574 (\"If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA’s 70-year history\"). We also observed that \"through many amendments to the FDCA and to FDA regulations, it has remained a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times.\" Id., at 570–571. A drug manufacturer \"is charged both with crafting an adequate label and with ensuring that its warnings remain adequate as long as the drug is on the market.\" Id., at 571. Thus, when the risks of a particular drug become apparent, the manufacturer has \"a duty to provide a warning that adequately describe[s] that risk.\" Ibid. \"Indeed,\" we noted, \"prior to 2007, the FDA lacked the authority to order manufacturers to revise their labels.\" Ibid. And even when \"Congress granted the FDA this authority,\" in the 2007 Amendments to the FDCA, Congress simultaneously \"reaffirmed the manufacturer’s obligations and referred specifically to the CBE regulation, which both reflects the manufacturer’s ultimate responsibility for its label and provides a mechanism for adding safety information to the label prior to FDA approval.\" Ibid. In light of Congress’ reluctance to displace state laws that would penalize drug manufacturers for failing to warn consumers of the risks associated with their drugs, and Congress’ insistence on requiring drug manufacturers to bear the responsibility for the content of their drug labels, we were unpersuaded by Wyeth’s pre-emption argument. In Wyeth’s case, we concluded, \"when the risk of gangrene from IV-push injection of Phenergan became apparent, Wyeth had a duty\" under state law \"to provide a warning that adequately described that risk, and the CBE regulation permitted it to provide such a warning before receiving the FDA’s approval.\" Ibid. At the same time, and more directly relevant here, we pointed out that \"the FDA retains authority to reject labeling changes made pursuant to the CBE regulation in its review of the manufacturer’s supplemental application, just as it retains such authority in reviewing all supplemental applications.\" Ibid. We then said that, nonetheless, \"absent clear evidence that the FDA would not have approved a change to Phenergan’s label, we will not conclude that it was impossible for Wyeth to comply with both federal and state requirements.\" Ibid. (emphasis added). We reviewed the record and concluded that \"Wyeth has offered no such evidence.\" Id., at 572. We said that Wyeth’s evidence of pre-emption fell short for two reasons. First, the record did not show that Wyeth \"supplied the FDA with an evaluation or analysis concerning the specific dangers\" that would have merited the warning. Id., at 572–573. We could find \"no evidence in this record that either the FDA or the manufacturer gave more than passing attention to the issue of IV-push versus IV-drip administration\"—the matter at issue in the case. Id., at 572 (internal quotation marks omitted). Second, the record did not show that Wyeth \"attempted to give the kind of warning required by [state law] but was prohibited from doing so by the FDA.\" Ibid., and n. 5. The \"FDA had not made an affirmative decision to preserve\" the warning as it was or \"to prohibit Wyeth from strengthening its warning.\" Id., at 572. For those reasons, we could not \"credit Wyeth’s contention that the FDA would have prevented it from adding a stronger warning about the IV-push method of intravenous administration.\" And we could not conclude that \"it was impossible for Wyeth to comply with both federal and state requirements.\" Id., at 573. We acknowledged that meeting the standard we set forth would be difficult, but, we said, \"[i]mpossibility preemption is a demanding defense.\" Ibid. B The underlying question for this type of impossibility pre-emption defense is whether federal law (including appropriate FDA actions) prohibited the drug manufacturer from adding any and all warnings to the drug label that would satisfy state law. And, of course, in order to succeed with that defense the manufacturer must show that the answer to this question is yes. But in Wyeth, we confronted that question in the context of a particular set of circumstances. Accordingly, for purposes of this case, we assume—but do not decide—that, as was true of the warning at issue in Wyeth, there is sufficient evidence to find that Merck violated state law by failing to add a warning about atypical femoral fractures to the Fosamax label. In a case like Wyeth, showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug’s label to include that warning. These conclusions flow from our precedents on impossibility pre-emption and the statutory and regulatory scheme that we reviewed in Wyeth. See 555 U. S., at 578. In particular, \"it has long been settled that state laws that conflict with federal law are without effect.\" Mutual Pharmaceutical Co., 570 U. S., at 480. But as we have cautioned many times before, the \"possibility of impossibility [is] not enough.\" PLIVA, Inc. v. Mensing, 564 U. S. 604, 625, n. 8 (2011) (internal quotation marks omitted). Consequently, we have refused to find clear evidence of such impossibility where the laws of one sovereign permit an activity that the laws of the other sovereign restrict or even prohibit. See, e.g., Barnett Bank of Marion Cty., N. A. v. Nelson, 517 U. S. 25, 31 (1996); Michigan Canners & Freezers Assn., Inc. v. Agricultural Marketing and Bargaining Bd., 467 U. S. 461, 478, and n. 21 (1984). And, as we explained in Wyeth, 555 U. S., at 571–573, federal law—the FDA’s CBE regulation—permits drug manufacturers to change a label to \"reflect newly acquired information\" if the changes \"add or strengthen a . . . warning\" for which there is \"evidence of a causal association,\" without prior approval from the FDA. 21 CFR §314.70(c)(6)(iii)(A). Of course, the FDA reviews CBE submissions and can reject label changes even after the manufacturer has made them. See §§314.70(c)(6), (7). And manufacturers cannot propose a change that is not based on reasonable evidence. §314.70(c)(6)(iii)(A). But in the interim, the CBE regulation permits changes, so a drug manufacturer will not ordinarily be able to show that there is an actual conflict between state and federal law such that it was impossible to comply with both. We do not further define Wyeth’s use of the words \"clear evidence\" in terms of evidentiary standards, such as \"preponderance of the evidence\" or \"clear and convincing evidence\" and so forth, because, as we shall discuss, infra, at 15–17, courts should treat the critical question not as a matter of fact for a jury but as a matter of law for the judge to decide. And where that is so, the judge must simply ask himself or herself whether the relevant federal and state laws \"irreconcilably conflic[t].\" Rice v. Norman Williams Co., 458 U. S. 654, 659 (1982); see ibid. (\"The existence of a hypothetical or potential conflict is insufficient to warrant the pre-emption of the state statute\"). We do note, however, that the only agency actions that can determine the answer to the pre-emption question, of course, are agency actions taken pursuant to the FDA’s congressionally delegated authority. The Supremacy Clause grants \"supreme\" status only to the \"the Laws of the United States.\" U. S. Const., Art. VI, cl. 2. And preemption takes place \"‘only when and if [the agency] is acting within the scope of its congressionally delegated authority, . . . for an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it.’\" New York v. FERC, 535 U. S. 1, 18 (2002) (some alterations omitted). Federal law permits the FDA to communicate its disapproval of a warning by means of notice-and-comment rulemaking setting forth labeling standards, see, e.g., 21 U. S. C. §355(d); 21 CFR §§201.57, 314.105; by formally rejecting a warning label that would have been adequate under state law, see, e.g., 21 CFR §§314.110(a), 314.125(b)(6); or with other agency action carrying the force of law, cf., e.g., 21 U. S. C. §355(o)(4)(A). The question of disapproval \"method\" is not now before us. And we make only the obvious point that, whatever the means the FDA uses to exercise its authority, those means must lie within the scope of the authority Congress has lawfully delegated. III We turn now to what is the determinative question before us: Is the question of agency disapproval primarily one of fact, normally for juries to decide, or is it a question of law, normally for a judge to decide without a jury? The complexity of the preceding discussion of the law helps to illustrate why we answer this question by concluding that the question is a legal one for the judge, not a jury. The question often involves the use of legal skills to determine whether agency disapproval fits facts that are not in dispute. Moreover, judges, rather than lay juries, are better equipped to evaluate the nature and scope of an agency’s determination. Judges are experienced in \"[t]he construction of written instruments,\" such as those normally produced by a federal agency to memorialize its considered judgments. Markman v. Westview Instruments, Inc., 517 U. S. 370, 388 (1996). And judges are better suited than are juries to understand and to interpret agency decisions in light of the governing statutory and regulatory context. Cf. 5 U. S. C. §706 (specifying that a \"reviewing court,\" not a jury, \"shall . . . determine the meaning or applicability of the terms of an agency action\"); see also H. R. Rep. No. 1980, 79th Cong., 2d Sess., 44 (1946) (noting longstanding view that \"questions respecting the . . . terms of any agency action\" and its \"application\" are \"questions of law\"). To understand the question as a legal question for judges makes sense given the fact that judges are normally familiar with principles of administrative law. Doing so should produce greater uniformity among courts; and greater uniformity is normally a virtue when a question requires a determination concerning the scope and effect of federal agency action. Cf. Markman, 517 U. S., at 390–391. We understand that sometimes contested brute facts will prove relevant to a court’s legal determination about the meaning and effect of an agency decision. For example, if the FDA rejected a drug manufacturer’s supplemental application to change a drug label on the ground that the information supporting the application was insufficient to warrant a labeling change, the meaning and scope of that decision might depend on what information the FDA had before it. Yet in litigation between a drug consumer and a drug manufacturer (which will ordinarily lack an official administrative record for an FDA decision), the litigants may dispute whether the drug manufacturer submitted all material information to the FDA. But we consider these factual questions to be subsumed within an already tightly circumscribed legal analysis. And we do not believe that they warrant submission alone or together with the larger pre-emption question to a jury. Rather, in those contexts where we have determined that the question is \"for the judge and not the jury,\" we have also held that \"courts may have to resolve subsidiary factual disputes\" that are part and parcel of the broader legal question. Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U. S. ___, ___–___ (2015) (slip op., at 6– 7). And, as in contexts as diverse as the proper construction of patent claims and the voluntariness of criminal confessions, they create a question that \"‘falls somewhere between a pristine legal standard and a simple historical fact.’\" Markman, 517 U. S., at 388 (quoting Miller v. Fenton, 474 U. S. 104, 114 (1985)). In those circumstances, \"‘the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.’\" Markman, 517 U. S., at 388 (quoting Miller, 474 U. S., at 114). In this context, that \"better positioned\" decisionmaker is the judge. IV Because the Court of Appeals treated the pre-emption question as one of fact, not law, and because it did not have an opportunity to consider fully the standards we have described in Part II of our opinion, we vacate its judgment and remand the case to that court for further proceedings consistent with this opinion."},
{"docket_number": "17-204", "syllabus": "Apple Inc. sells iPhone applications, or apps, directly to iPhone owners through its App Store—the only place where iPhone owners may lawfully buy apps. Most of those apps are created by independent developers under contracts with Apple. Apple charges the developers a $99 annual membership fee, allows them to set the retail price of the apps, and charges a 30% commission on every app sale. Respondents, four iPhone owners, sued Apple, alleging that the company has unlawfully monopolized the aftermarket for iPhone apps. Apple moved to dismiss, arguing that the iPhone owners could not sue because they were not direct purchasers from Apple under Illinois Brick Co. v. Illinois, 431 U. S. 720. The District Court agreed, but the Ninth Circuit reversed, concluding that the iPhone owners were direct purchasers because they purchased apps directly from Apple. Held: Under Illinois Brick, the iPhone owners were direct purchasers who may sue Apple for alleged monopolization. Pp. 4–14. (a) This straightforward conclusion follows from the text of the antitrust laws and from this Court’s precedent. Section 4 of the Clayton Act provides that \"any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue.\" 15 U. S. C. §15(a). That broad text readily covers consumers who purchase goods or services at higher-than-competitive prices from an allegedly monopolistic retailer. Applying §4, this Court has consistently stated that \"the immediate buyers from the alleged antitrust violators\" may maintain a suit against the antitrust violators, Kansas v. UtiliCorp United Inc., 497 U. S. 199, 207, but has ruled that indirect purchasers who are two or more steps removed from the violator in a distribution chain may not sue. Unlike the consumer in Illinois Brick, the iPhone owners here are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. The absence of an intermediary in the distribution chain between Apple and the consumer is dispositive. Pp. 4–7. (b) Apple argues that Illinois Brick allows consumers to sue only the party who sets the retail price, whether or not the party sells the good or service directly to the complaining party. But that theory suffers from three main problems. First, it contradicts statutory text and precedent by requiring the Court to rewrite the rationale of Illinois Brick and to gut its longstanding bright-line rule. Any ambiguity in Illinois Brick should be resolved in the direction of the statutory text, which states that \"any person\" injured by an antitrust violation may sue to recover damages. Second, Apple’s theory is not persuasive economically or legally. It would draw an arbitrary and unprincipled line among retailers based on their financial arrangements with their manufacturers or suppliers. And it would permit a consumer to sue a monopolistic retailer when the retailer set the retail price by marking up the price it had paid the manufacturer or supplier for the good or service but not when the manufacturer or supplier set the retail price and the retailer took a commission on each sale. Third, Apple’s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement. Pp. 7–11. (c) Contrary to Apple’s argument, the three Illinois Brick rationales for adopting the direct-purchaser rule cut strongly in respondents’ favor. First, Apple posits that allowing only the upstream app developers—and not the downstream consumers—to sue Apple would mean more effective antitrust enforcement. But that makes little sense, and it would directly contradict the longstanding goal of effective private enforcement and consumer protection in antitrust cases. Second, Apple warns that calculating the damages in successful consumer antitrust suits against monopolistic retailers might be complicated. But Illinois Brick is not a get-out-of-court-free card for monopolistic retailers to play any time that a damages calculation might be complicated. Third, Apple claims that allowing consumers to sue will result in \"conflicting claims to a common fund—the amount of the alleged overcharge.\" Illinois Brick, 431 U. S., at 737. But this is not a case where multiple parties at different levels of a distribution chain are trying to recover the same passed-through overcharge initially levied by the manufacturer at the top of the chain, cf. id., at 726–727. Pp. 11–14. 846 F. 3d 313, affirmed.", "opinion": "In 2007, Apple started selling iPhones. The next year, Apple launched the retail App Store, an electronic store where iPhone owners can purchase iPhone applications from Apple. Those \"apps\" enable iPhone owners to send messages, take photos, watch videos, buy clothes, order food, arrange transportation, purchase concert tickets, donate to charities, and the list goes on. \"There’s an app for that\" has become part of the 21st-century American lexicon. In this case, however, several consumers contend that Apple charges too much for apps. The consumers argue, in particular, that Apple has monopolized the retail market for the sale of apps and has unlawfully used its monopolistic power to charge consumers higher-than-competitive prices. A claim that a monopolistic retailer (here, Apple) has used its monopoly to overcharge consumers is a classic antitrust claim. But Apple asserts that the consumer-plaintiffs in this case may not sue Apple because they supposedly were not \"direct purchasers\" from Apple under our decision in Illinois Brick Co. v. Illinois, 431 U. S. 720, 745–746 (1977). We disagree. The plaintiffs purchased apps directly from Apple and therefore are direct purchasers under Illinois Brick. At this early pleadings stage of the litigation, we do not assess the merits of the plaintiffs’ antitrust claims against Apple, nor do we consider any other defenses Apple might have. We merely hold that the Illinois Brick direct-purchaser rule does not bar these plaintiffs from suing Apple under the antitrust laws. We affirm the judgment of the U. S. Court of Appeals for the Ninth Circuit. I In 2007, Apple began selling iPhones. In July 2008, Apple started the App Store. The App Store now contains about 2 million apps that iPhone owners can download. By contract and through technological limitations, the App Store is the only place where iPhone owners may lawfully buy apps. For the most part, Apple does not itself create apps. Rather, independent app developers create apps. Those independent app developers then contract with Apple to make the apps available to iPhone owners in the App Store. Through the App Store, Apple sells the apps directly to iPhone owners. To sell an app in the App Store, app developers must pay Apple a $99 annual membership fee. Apple requires that the retail sales price end in $0.99, but otherwise allows the app developers to set the retail price. Apple keeps 30 percent of the sales price, no matter what the sales price might be. In other words, Apple pockets a 30 percent commission on every app sale. In 2011, four iPhone owners sued Apple. They allege that Apple has unlawfully monopolized \"the iPhone apps aftermarket.\" App. to Pet. for Cert. 53a. The plaintiffs allege that, via the App Store, Apple locks iPhone owners \"into buying apps only from Apple and paying Apple’s 30% fee, even if \" the iPhone owners wish \"to buy apps elsewhere or pay less.\" Id., at 45a. According to the complaint, that 30 percent commission is \"pure profit\" for Apple and, in a competitive environment with other retailers, \"Apple would be under considerable pressure to substantially lower its 30% profit margin.\" Id., at 54a–55a. The plaintiffs allege that in a competitive market, they would be able to \"choose between Apple’s high-priced App Store and less costly alternatives.\" Id., at 55a. And they allege that they have \"paid more for their iPhone apps than they would have paid in a competitive market.\" Id., at 53a. Apple moved to dismiss the complaint, arguing that the iPhone owners were not direct purchasers from Apple and therefore may not sue. In Illinois Brick, this Court held that direct purchasers may sue antitrust violators, but also ruled that indirect purchasers may not sue. The District Court agreed with Apple and dismissed the complaint. According to the District Court, the iPhone owners were not direct purchasers from Apple because the app developers, not Apple, set the consumers’ purchase price. The Ninth Circuit reversed. The Ninth Circuit concluded that the iPhone owners were direct purchasers under Illinois Brick because the iPhone owners purchased apps directly from Apple. According to the Ninth Circuit, Illinois Brick means that a consumer may not sue an alleged monopolist who is two or more steps removed from the consumer in a vertical distribution chain. See In re Apple iPhone Antitrust Litig., 846 F. 3d 313, 323 (2017). Here, however, the consumers purchased directly from Apple, the alleged monopolist. Therefore, the Ninth Circuit held that the iPhone owners could sue Apple for allegedly monopolizing the sale of iPhone apps and charging higherthan-competitive prices. Id., at 324. We granted certiorari. 585 U. S. ___ (2018). II A The plaintiffs’ allegations boil down to one straightforward claim: that Apple exercises monopoly power in the retail market for the sale of apps and has unlawfully used its monopoly power to force iPhone owners to pay Apple higher-than-competitive prices for apps. According to the plaintiffs, when iPhone owners want to purchase an app, they have only two options: (1) buy the app from Apple’s App Store at a higher-than-competitive price or (2) do not buy the app at all. Any iPhone owners who are dissatisfied with the selection of apps available in the App Store or with the price of the apps available in the App Store are out of luck, or so the plaintiffs allege. The sole question presented at this early stage of the case is whether these consumers are proper plaintiffs for this kind of antitrust suit—in particular, our precedents ask, whether the consumers were \"direct purchasers\" from Apple. Illinois Brick, 431 U. S., at 745–746. It is undisputed that the iPhone owners bought the apps directly from Apple. Therefore, under Illinois Brick, the iPhone owners were direct purchasers who may sue Apple for alleged monopolization. That straightforward conclusion follows from the text of the antitrust laws and from our precedents. First is text: Section 2 of the Sherman Act makes it unlawful for any person to \"monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.\" 26 Stat. 209, 15 U. S. C. §2. Section 4 of the Clayton Act in turn provides that \"any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue . . . the defendant . . . and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.\" 38 Stat. 731, 15 U. S. C. §15(a) (emphasis added). The broad text of §4—\"any person\" who has been \"injured\" by an antitrust violator may sue—readily covers consumers who purchase goods or services at higher-than-competitive prices from an allegedly monopolistic retailer. Second is precedent: Applying §4, we have consistently stated that \"the immediate buyers from the alleged antitrust violators\" may maintain a suit against the antitrust violators. Kansas v. UtiliCorp United Inc., 497 U. S. 199, 207 (1990); see also Illinois Brick, 431 U. S., at 745–746. At the same time, incorporating principles of proximate cause into §4, we have ruled that indirect purchasers who are two or more steps removed from the violator in a distribution chain may not sue. Our decision in Illinois Brick established a bright-line rule that authorizes suits by direct purchasers but bars suits by indirect purchasers. Id., at 746.1 The facts of Illinois Brick illustrate the rule. Illinois Brick Company manufactured and distributed concrete blocks. Illinois Brick sold the blocks primarily to masonry contractors, and those contractors in turn sold masonry structures to general contractors. Those general contractors in turn sold their services for larger construction projects to the State of Illinois, the ultimate consumer of the blocks. The consumer State of Illinois sued the manufacturer Illinois Brick. The State alleged that Illinois Brick had engaged in a conspiracy to fix the price of concrete blocks. According to the complaint, the State paid more for the concrete blocks than it would have paid absent the price-fixing conspiracy. The monopoly overcharge allegedly flowed all the way down the distribution chain to the ultimate consumer, who was the State of Illinois. This Court ruled that the State could not bring an antitrust action against Illinois Brick, the alleged violator, because the State had not purchased concrete blocks directly from Illinois Brick. The proper plaintiff to bring that claim against Illinois Brick, the Court stated, would be an entity that had purchased directly from Illinois Brick. Ibid. The bright-line rule of Illinois Brick, as articulated in that case and as we reiterated in UtiliCorp, means that indirect purchasers who are two or more steps removed from the antitrust violator in a distribution chain may not sue. By contrast, direct purchasers—that is, those who are \"the immediate buyers from the alleged antitrust violators\"—may sue. UtiliCorp, 497 U. S., at 207. For example, if manufacturer A sells to retailer B, and retailer B sells to consumer C, then C may not sue A. But B may sue A if A is an antitrust violator. And C may sue B if B is an antitrust violator. That is the straightforward rule of Illinois Brick. See Loeb Industries, Inc. v. Sumitomo Corp., 306 F. 3d 469, 481–482 (CA7 2002) (Wood, J.).2 In this case, unlike in Illinois Brick, the iPhone owners are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. There is no intermediary in the distribution chain between Apple and the consumer. The iPhone owners purchase apps directly from the retailer Apple, who is the alleged antitrust violator. The iPhone owners pay the alleged overcharge directly to Apple. The absence of an intermediary is dispositive. Under Illinois Brick, the iPhone owners are direct purchasers from Apple and are proper plaintiffs to maintain this antitrust suit. B All of that seems simple enough. But Apple argues strenuously against that seemingly simple conclusion, and we address its arguments carefully. For this kind of retailer case, Apple’s theory is that Illinois Brick allows consumers to sue only the party who sets the retail price, whether or not that party sells the good or service directly to the complaining party. Apple says that its theory accords with the economics of the transaction. Here, Apple argues that the app developers, not Apple, set the retail price charged to consumers, which according to Apple means that the consumers may not sue Apple. We see three main problems with Apple’s \"who sets the price\" theory. First, Apple’s theory contradicts statutory text and precedent. As we explained above, the text of §4 broadly affords injured parties a right to sue under the antitrust laws. And our precedent in Illinois Brick established a bright-line rule where direct purchasers such as the consumers here may sue antitrust violators from whom they purchased a good or service. Illinois Brick, as we read the opinion, was not based on an economic theory about who set the price. Rather, Illinois Brick sought to ensure an effective and efficient litigation scheme in antitrust cases. To do so, the Court drew a bright line that allowed direct purchasers to sue but barred indirect purchasers from suing. When there is no intermediary between the purchaser and the antitrust violator, the purchaser may sue. The Illinois Brick bright-line rule is grounded on the \"belief that simplified administration improves antitrust enforcement.\" 2A P. Areeda, H. Hovenkamp, R. Blair, & C. Durrance, Antitrust Law ¶346e, p. 194 (4th ed. 2014) (Areeda & Hovenkamp). Apple’s theory would require us to rewrite the rationale of Illinois Brick and to gut the longstanding bright-line rule. To the extent that Illinois Brick leaves any ambiguity about whether a direct purchaser may sue an antitrust violator, we should resolve that ambiguity in the direction of the statutory text. And under the text, direct purchasers from monopolistic retailers are proper plaintiffs to sue those retailers. Second, in addition to deviating from statutory text and precedent, Apple’s proposed rule is not persuasive economically or legally. Apple’s effort to transform Illinois Brick from a direct-purchaser rule to a \"who sets the price\" rule would draw an arbitrary and unprincipled line among retailers based on retailers’ financial arrangements with their manufacturers or suppliers. In the retail context, the price charged by a retailer to a consumer is often a result (at least in part) of the price charged by the manufacturer or supplier to the retailer, or of negotiations between the manufacturer or supplier and the retailer. Those agreements between manufacturer or supplier and retailer may take myriad forms, including for example a markup pricing model or a commission pricing model. In a traditional markup pricing model, a hypothetical monopolistic retailer might pay $6 to the manufacturer and then sell the product for $10, keeping $4 for itself. In a commission pricing model, the retailer might pay nothing to the manufacturer; agree with the manufacturer that the retailer will sell the product for $10 and keep 40 percent of the sales price; and then sell the product for $10, send $6 back to the manufacturer, and keep $4. In those two different pricing scenarios, everything turns out to be economically the same for the manufacturer, retailer, and consumer. Yet Apple’s proposed rule would allow a consumer to sue the monopolistic retailer in the former situation but not the latter. In other words, under Apple’s rule a consumer could sue a monopolistic retailer when the retailer set the retail price by marking up the price it had paid the manufacturer or supplier for the good or service. But a consumer could not sue a monopolistic retailer when the manufacturer or supplier set the retail price and the retailer took a commission on each sale. Apple’s line-drawing does not make a lot of sense, other than as a way to gerrymander Apple out of this and similar lawsuits. In particular, we fail to see why the form of the upstream arrangement between the manufacturer or supplier and the retailer should determine whether a monopolistic retailer can be sued by a downstream consumer who has purchased a good or service directly from the retailer and has paid a higher-than-competitive price because of the retailer’s unlawful monopolistic conduct. As the Court of Appeals aptly stated, \"the distinction between a markup and a commission is immaterial.\" 846 F. 3d, at 324. A leading antitrust treatise likewise states: \"Denying standing because ‘title’ never passes to a broker is an overly lawyered approach that ignores the reality that a distribution system that relies on brokerage is economically indistinguishable from one that relies on purchaser-resellers.\" 2A Areeda & Hovenkamp ¶345, at 183. If a retailer has engaged in unlawful monopolistic conduct that has caused consumers to pay higher-than-competitive prices, it does not matter how the retailer structured its relationship with an upstream manufacturer or supplier—whether, for example, the retailer employed a markup or kept a commission. To be sure, if the monopolistic retailer’s conduct has not caused the consumer to pay a higher-than-competitive price, then the plaintiff ’s damages will be zero. Here, for example, if the competitive commission rate were 10 percent rather than 30 percent but Apple could prove that app developers in a 10 percent commission system would always set a higher price such that consumers would pay the same retail price regardless of whether Apple’s commission was 10 percent or 30 percent, then the consumers’ damages would presumably be zero. But we cannot assume in all cases—as Apple would necessarily have us do—that a monopolistic retailer who keeps a commission does not ever cause the consumer to pay a higher-than-competitive price. We find no persuasive legal or economic basis for such a blanket assertion. In short, we do not understand the relevance of the upstream market structure in deciding whether a downstream consumer may sue a monopolistic retailer. Apple’s rule would elevate form (what is the precise arrangement between manufacturers or suppliers and retailers?) over substance (is the consumer paying a higher price because of the monopolistic retailer’s actions?). If the retailer’s unlawful monopolistic conduct caused a consumer to pay the retailer a higher-than-competitive price, the consumer is entitled to sue the retailer under the antitrust laws. Third, if accepted, Apple’s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement. Consider a traditional supplier-retailer relationship, in which the retailer purchases a product from the supplier and sells the product with a markup to consumers. Under Apple’s proposed rule, a retailer, instead of buying the product from the supplier, could arrange to sell the product for the supplier without purchasing it from the supplier. In other words, rather than paying the supplier a certain price for the product and then marking up the price to sell the product to consumers, the retailer could collect the price of the product from consumers and remit only a fraction of that price to the supplier. That restructuring would allow a monopolistic retailer to insulate itself from antitrust suits by consumers, even in situations where a monopolistic retailer is using its monopoly to charge higher-than-competitive prices to consumers. We decline to green-light monopolistic retailers to exploit their market position in that way. We refuse to rubber-stamp such a blatant evasion of statutory text and judicial precedent. In sum, Apple’s theory would disregard statutory text and precedent, create an unprincipled and economically senseless distinction among monopolistic retailers, and furnish monopolistic retailers with a how-to guide for evasion of the antitrust laws. C In arguing that the Court should transform the direct-purchaser rule into a \"who sets the price\" rule, Apple insists that the three reasons that the Court identified in Illinois Brick for adopting the direct-purchaser rule apply to this case—even though the consumers here (unlike in Illinois Brick) were direct purchasers from the alleged monopolist. The Illinois Brick Court listed three reasons for barring indirect-purchaser suits: (1) facilitating more effective enforcement of antitrust laws; (2) avoiding complicated damages calculations; and (3) eliminating duplicative damages against antitrust defendants. As we said in UtiliCorp, however, the bright-line rule of Illinois Brick means that there is no reason to ask whether the rationales of Illinois Brick \"apply with equal force\" in every individual case. 497 U. S., at 216. We should not engage in \"an unwarranted and counterproductive exercise to litigate a series of exceptions.\" Id., at 217. But even if we engage with this argument, we conclude that the three Illinois Brick rationales—whether considered individually or together—cut strongly in the plaintiffs’ favor here, not Apple’s. First, Apple argues that barring the iPhone owners from suing Apple will better promote effective enforcement of the antitrust laws. Apple posits that allowing only the upstream app developers—and not the downstream consumers—to sue Apple would mean more effective enforcement of the antitrust laws. We do not agree. Leaving consumers at the mercy of monopolistic retailers simply because upstream suppliers could also sue the retailers makes little sense and would directly contradict the longstanding goal of effective private enforcement and consumer protection in antitrust cases. Second, Apple warns that calculating the damages in successful consumer antitrust suits against monopolistic retailers might be complicated. It is true that it may be hard to determine what the retailer would have charged in a competitive market. Expert testimony will often be necessary. But that is hardly unusual in antitrust cases. Illinois Brick is not a get-out-of-court-free card for monopolistic retailers to play any time that a damages calculation might be complicated. Illinois Brick surely did not wipe out consumer antitrust suits against monopolistic retailers from whom the consumers purchased goods or services at higher-than-competitive prices. Moreover, the damages calculation may be just as complicated in a retailer markup case as it is in a retailer commission case. Yet Apple apparently accepts consumers suing monopolistic retailers in a retailer markup case. If Apple accepts that kind of suit, then Apple should also accept consumers suing monopolistic retailers in a retailer commission case. Third, Apple claims that allowing consumers to sue will result in \"conflicting claims to a common fund—the amount of the alleged overcharge.\" Illinois Brick, 431 U. S., at 737. Apple is incorrect. This is not a case where multiple parties at different levels of a distribution chain are trying to all recover the same passed-through overcharge initially levied by the manufacturer at the top of the chain. Cf. id., at 726–727; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 483–484 (1968). If the iPhone owners prevail, they will be entitled to the full amount of the unlawful overcharge that they paid to Apple. The overcharge has not been passed on by anyone to anyone. Unlike in Illinois Brick, there will be no need to \"trace the effect of the overcharge through each step in the distribution chain.\" 431 U. S., at 741. It is true that Apple’s alleged anticompetitive conduct may leave Apple subject to multiple suits by different plaintiffs. But Illinois Brick did not purport to bar multiple liability that is unrelated to passing an overcharge down a chain of distribution. Basic antitrust law tells us that the \"mere fact that an antitrust violation produces two different classes of victims hardly entails that their injuries are duplicative of one another.\" 2A Areeda & Hovenkamp ¶339d, at 136. Multiple suits are not atypical when the intermediary in a distribution chain is a bottleneck monopolist or monopsonist (or both) between the manufacturer on the one end and the consumer on the other end. A retailer who is both a monopolist and a monopsonist may be liable to different classes of plaintiffs—both to downstream consumers and to upstream suppliers—when the retailer’s unlawful conduct affects both the downstream and upstream markets. Here, some downstream iPhone consumers have sued Apple on a monopoly theory. And it could be that some upstream app developers will also sue Apple on a monopsony theory. In this instance, the two suits would rely on fundamentally different theories of harm and would not assert dueling claims to a \"common fund,\" as that term was used in Illinois Brick. The consumers seek damages based on the difference between the price they paid and the competitive price. The app developers would seek lost profits that they could have earned in a competitive retail market. Illinois Brick does not bar either category of suit. In short, the three Illinois Brick rationales do not persuade us to remake Illinois Brick and to bar direct-purchaser suits against monopolistic retailers who employ commissions rather than markups. The plaintiffs seek to hold retailers to account if the retailers engage in unlawful anticompetitive conduct that harms consumers who purchase from those retailers. That is why we have antitrust law. Ever since Congress overwhelmingly passed and President Benjamin Harrison signed the Sherman Act in 1890, \"protecting consumers from monopoly prices\" has been \"the central concern of antitrust.\" 2A Areeda & Hovenkamp ¶345, at 179. The consumers here purchased apps directly from Apple, and they allege that Apple used its monopoly power over the retail apps market to charge higher-than-competitive prices. Our decision in Illinois Brick does not bar the consumers from suing Apple for Apple’s allegedly monopolistic conduct. We affirm the judgment of the U. S. Court of Appeals for the Ninth Circuit."},
{"docket_number": "16-1094", "syllabus": "The Foreign Sovereign Immunities Act of 1976 (FSIA) generally immunizes foreign states from suit in this country unless one of several enumerated exceptions to immunity applies. 28 U. S. C. §§1604, 1605–1607. If an exception applies, the FSIA provides subject-matter jurisdiction in federal district court, §1330(a), and personal jurisdiction \"where service has been made under section 1608,\" §1330(b). Section 1608(a) provides four methods of serving civil process, including, as relevant here, service \"by any form of mail requiring a signed receipt, to be addressed and dispatched . . . to the head of the ministry of foreign affairs of the foreign state concerned,\" §1608(a)(3). Respondents, victims of the bombing of the USS Cole and their family members, sued the Republic of Sudan under the FSIA, alleging that Sudan provided material support to al Qaeda for the bombing. The court clerk, at respondents’ request, addressed the service packet to Sudan’s Minister of Foreign Affairs at the Sudanese Embassy in the United States and later certified that a signed receipt had been returned. After Sudan failed to appear in the litigation, the District Court entered a default judgment for respondents and subsequently issued three orders requiring banks to turn over Sudanese assets to pay the judgment. Sudan challenged those orders, arguing that the judgment was invalid for lack of personal jurisdiction, because §1608(a)(3) required that the service packet be sent to its foreign minister at his principal office in Sudan, not to the Sudanese Embassy in the United States. The Second Circuit affirmed, reasoning that the statute was silent on where the mailing must be sent and that the method chosen was consistent with the statute’s language and could be reasonably expected to result in delivery to the foreign minister. Held: Most naturally read, §1608(a)(3) requires a mailing to be sent directly to the foreign minister’s office in the foreign state. Pp. 5–17. (a) A letter or package is \"addressed\" to an intended recipient when his or her name and address are placed on the outside. The noun \"address\" means \"a residence or place of business.\" Webster’s Third New International Dictionary 25. A foreign nation’s embassy in the United States is neither the residence nor the usual place of business of that nation’s foreign minister. Similarly, to \"dispatch\" a letter to an addressee connotes sending it directly. It is also significant that service under §1608(a)(3) requires a signed returned receipt to ensure delivery to the addressee. Pp. 5–9. (b) Several related provisions in §1608 support this reading. Section 1608(b)(3)(B) contains similar \"addressed and dispatched\" language, but also says that service by its method is permissible \"if reasonably calculated to give actual notice.\" Respondents’ suggestion that §1608(a)(3) embodies a similar standard runs up against wellsettled principles of statutory interpretation. See Department of Homeland Security v. MacLean, 574 U. S. ___, ___, and Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837. Section 1608(b)(2) expressly allows service on an agent, specifies the particular individuals who are permitted to be served as agents of the recipient, and makes clear that service on the agent may occur in the United States. Congress could have included similar terms in §1608(a)(3) had it intended the provision to operate in this manner. Section 1608(c) deems service to have occurred under all methods only when there is a strong basis for concluding that the service packet will very shortly thereafter come into the hands of a foreign official who will know what needs to be done. Under §1608(a)(3), that occurs when the person who receives it from the carrier signs for it. Interpreting §1608(a)(3) to require that a service packet be sent to a foreign minister’s own office rather than to a mailroom employee in a foreign embassy better harmonizes the rules for determining when service occurs. Pp. 9–13. (c) This reading of §1608(a)(3) avoids potential tension with the Federal Rules of Civil Procedure and the Vienna Convention on Diplomatic Relations. If mailing a service packet to a foreign state’s embassy in the United States were sufficient, then it would appear to be easier to serve the foreign state than to serve a person in that foreign state under Rule 4. The natural reading of §1608(a)(3) also avoids the potential international implications arising from the State Department’s position that the Convention’s principle of inviolability precludes serving a foreign state by mailing process to the foreign state’s embassy in the United States. Pp. 13–15. (d) Respondents’ remaining arguments are unavailing. First, their suggestion that §1608(a)(3) demands that service be sent \"to a location that is likely to have a direct line of communication to the foreign minister\" creates difficult line-drawing problems that counsel in favor of maintaining a clear, administrable rule. Second, their claim that §1608(a)(4)—which requires that process be sent to the Secretary of State in \"Washington, District of Columbia\"—shows that Congress did not intend §1608(a)(3) to have a similar locational requirement is outweighed by the countervailing arguments already noted. Finally, they contend that it would be unfair to throw out their judgment based on petitioner’s highly technical and belatedly raised argument. But in cases with sensitive diplomatic implications, the rule of law demands adherence to strict rules, even when the equities seem to point in the opposite direction. Pp. 15–17. 802 F. 3d 399, reversed and remanded.", "opinion": "This case concerns the requirements applicable to a particular method of serving civil process on a foreign state. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a foreign state may be served by means of a mailing that is \"addressed and dispatched . . . to the head of the ministry of foreign affairs of the foreign state concerned.\" 28 U. S. C. §1608(a)(3). The question now before us is whether this provision is satisfied when a service packet that names the foreign minister is mailed to the foreign state’s embassy in the United States. We hold that it is not. Most naturally read, §1608(a)(3) requires that a mailing be sent directly to the foreign minister’s office in the minister’s home country. I A Under the FSIA, a foreign state is immune from the jurisdiction of courts in this country unless one of several enumerated exceptions to immunity applies. 28 U. S. C. §§1604, 1605–1607. If a suit falls within one of these exceptions, the FSIA provides subject-matter jurisdiction in federal district courts. §1330(a). The FSIA also provides for personal jurisdiction \"where service has been made under section 1608.\" §1330(b). Section 1608(a) governs service of process on \"a foreign state or political subdivision of a foreign state.\" §1608(a); Fed. Rule Civ. Proc. 4(j)(1). In particular, it sets out in hierarchical order the following four methods by which \"[s]ervice . . . shall be made.\" 28 U. S. C. §1608(a). The first method is by delivery of a copy of the summons and complaint \"in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision.\" §1608(a)(1). \"[I]f no special arrangement exists,\" service may be made by the second method, namely, delivery of a copy of the summons and complaint \"in accordance with an applicable international convention on service of judicial documents.\" §1608(a)(2). If service is not possible under either of the first two methods, the third method, which is the one at issue in this case, may be used. This method calls for \"sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.\" §1608(a)(3) (emphasis added). Finally, if service cannot be made within 30 days under §1608(a)(3), service may be effected by sending the service packet \"by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia,\" for transmittal \"through diplomatic channels to the foreign state.\" §1608(a)(4). Once served, a foreign state or political subdivision has 60 days to file a responsive pleading. §1608(d). If the foreign state or political subdivision does not do this, it runs the risk of incurring a default judgment. See §1608(e). A copy of any such default judgment must be \"sent to the foreign state or political subdivision in the [same] manner prescribed for service.\" Ibid. B On October 12, 2000, the USS Cole, a United States Navy guided-missile destroyer, entered the harbor of Aden, Yemen, for what was intended to be a brief refueling stop. While refueling was underway, a small boat drew along the side of the Cole, and the occupants of the boat detonated explosives that tore a hole in the side of the Cole. Seventeen crewmembers were killed, and dozens more were injured. Al Qaeda later claimed responsibility for the attack. Respondents in this case are victims of the USS Cole bombing and their family members. In 2010, respondents sued petitioner, the Republic of Sudan, alleging that Sudan had provided material support to al Qaeda for the bombing. See 28 U. S. C. §§1605A(a)(1), (c). Because respondents brought suit under the FSIA, they were required to serve Sudan with process under §1608(a). It is undisputed that service could not be made under §1608(a)(1) or §1608(a)(2), and respondents therefore turned to §1608(a)(3). At respondents’ request, the clerk of the court sent the service packet, return receipt requested, to: \"Republic of Sudan, Deng Alor Koul, Minister of Foreign Affairs, Embassy of the Republic of Sudan, 2210 Massachusetts Avenue NW, Washington, DC 20008.\" App. 172. The clerk certified that the service packet had been sent and, a few days later, certified that a signed receipt had been returned. After Sudan failed to appear in the litigation, the District Court for the District of Columbia held an evidentiary hearing and entered a $314 million default judgment against Sudan. Again at respondents’ request, the clerk of the court mailed a copy of the default judgment in the same manner that the clerk had previously used. See §1608(e). With their default judgment in hand, respondents turned to the District Court for the Southern District of New York, where they sought to register the judgment and satisfy it through orders requiring several banks to turn over Sudanese assets. See 28 U. S. C. §1963 (providing for registration of judgments for enforcement in other districts). Pursuant to §1610(c), the District Court entered an order confirming that a sufficient period of time had elapsed following the entry and notice of the default judgment, and the court then issued three turnover orders. At this point, Sudan made an appearance for the purpose of contesting jurisdiction. It filed a notice of appeal from each of the three turnover orders and contended on appeal that the default judgment was invalid for lack of personal jurisdiction. In particular, Sudan maintained that §1608(a)(3) required that the service packet be sent to its foreign minister at his principal office in Khartoum, the capital of Sudan, and not to the Sudanese Embassy in the United States. The Court of Appeals for the Second Circuit rejected this argument and affirmed the orders of the District Court. 802 F. 3d 399 (2015). The Second Circuit reasoned that, although §1608(a)(3) requires that a service packet be mailed \"to the head of the ministry of foreign affairs of the foreign state concerned,\" the statute \"is silent as to a specific location where the mailing is to be addressed.\" Id., at 404. In light of this, the court concluded that \"the method chosen by plaintiffs—a mailing addressed to the minister of foreign affairs at the embassy—was consistent with the language of the statute and could reasonably be expected to result in delivery to the intended person.\" Ibid. Sudan filed a petition for rehearing, and the United States filed an amicus curiae brief in support of Sudan’s petition. The panel ordered supplemental briefing and heard additional oral argument, but it once again affirmed, reiterating its view that §1608(a)(3) \"does not specify that the mailing be sent to the head of the ministry of foreign affairs in the foreign country.\" 838 F. 3d 86, 91 (CA2 2016). The court thereafter denied Sudan’s petition for rehearing en banc. Subsequent to the Second Circuit’s decision, the Court of Appeals for the Fourth Circuit held in a similar case that §1608(a)(3) \"does not authorize delivery of service to a foreign state’s embassy even if it correctly identifies the intended recipient as the head of the ministry of foreign affairs.\" Kumar v. Republic of Sudan, 880 F. 3d 144, 158 (2018), cert. pending, No. 17–1269. We granted certiorari to resolve this conflict. 585 U. S. ___ (2018) II A The question before us concerns the meaning of §1608(a)(3), and in interpreting that provision, \"[w]e begin ‘where all such inquiries must begin: with the language of the statute itself.’\" Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 566 U. S. 399, 412 (2012) (quoting United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989)). As noted, §1608(a)(3) requires that service be sent \"by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.\" The most natural reading of this language is that service must be mailed directly to the foreign minister’s office in the foreign state. Although this is not, we grant, the only plausible reading of the statutory text, it is the most natural one. See, e.g., United States v. Hohri, 482 U. S. 64, 69–71 (1987) (choosing the \"more natural\" reading of a statute); ICC v. Texas, 479 U. S. 450, 456–457 (1987) (same); see also Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S. 33, 41 (2008) (similar). A key term in §1608(a)(3) is the past participle \"addressed.\" A letter or package is \"addressed\" to an intended recipient when his or her name and \"address\" is placed on the outside of the item to be sent. And the noun \"address,\" in the sense relevant here, means \"the designation of a place (as a residence or place of business) where a person or organization may be found or communicated with.\" Webster’s Third New International Dictionary 25 (1971) (Webster’s Third); see also Webster’s Second New International Dictionary 30 (1957) (\"the name or description of a place of residence, business, etc., where a person may be found or communicated with\"); Random House Dictionary of the English Language 17 (1966) (\"the place or the name of the place where a person, organization, or the like is located or may be reached\"); American Heritage Dictionary 15 (1969) (\"[t]he location at which a particular organization or person may be found or reached\"); Oxford English Dictionary 106 (1933) (OED) (\"the name of the place to which any one’s letters are directed\"). Since a foreign nation’s embassy in the United States is neither the residence nor the usual place of business of that nation’s foreign minister and is not a place where the minister can customarily be found, the most common understanding of the minister’s \"address\" is inconsistent with the interpretation of §1608(a)(3) adopted by the court below and advanced by respondents. We acknowledge that there are circumstances in which a mailing may be \"addressed\" to the intended recipient at a place other than the individual’s residence or usual place of business. For example, if the person sending the mailing does not know the intended recipient’s current home or business address, the sender might use the intended recipient’s last known address in the hope that the mailing will be forwarded. Or a sender might send a mailing to a third party who is thought to be in a position to ensure that the mailing is ultimately received by the intended recipient. But in the great majority of cases, addressing a mailing to X means placing on the outside of the mailing both X’s name and the address of X’s residence or customary place of work. Section 1608(a)(3)’s use of the term \"dispatched\" points in the same direction. To \"dispatch\" a communication means \"to send [it] off or away (as to a special destination) with promptness or speed often as a matter of official business.\" Webster’s Third 653; see also OED 478 (\"To send off post-haste or with expedition or promptitude (a messenger, message, etc., having an express destination)\"). A person who wishes to \"dispatch\" a letter to X will generally send it directly to X at a place where X is customarily found. The sender will not \"dispatch\" the letter in a roundabout way, such as by directing it to a third party who, it is hoped, will then send it on to the intended recipient. A few examples illustrate this point. Suppose that a person is instructed to \"address\" a letter to the Attorney General of the United States and \"dispatch\" the letter (i.e., to \"send [it] off post-haste\") to the Attorney General. The person giving these instructions would likely be disappointed and probably annoyed to learn that the letter had been sent to, let us say, the office of the United States Attorney for the District of Idaho. And this would be so even though a U. S. Attorney’s office is part of the Department headed by the Attorney General and even though such an office would very probably forward the letter to the Attorney General’s office in Washington. Similarly, a person who instructs a subordinate to dispatch a letter to the CEO of a big corporation that owns retail outlets throughout the country would probably be irritated to learn that the letter had been mailed to one of those stores instead of corporate headquarters. To \"dispatch\" a letter to an addressee connotes sending it directly. A similar understanding underlies the venerable \"mailbox rule.\" As first-year law students learn in their course on contracts, there is a presumption that a mailed acceptance of an offer is deemed operative when \"dispatched\" if it is \"properly addressed.\" Restatement (Second) of Contracts § 66, p. 161 (1979) (Restatement); Rosenthal v. Walker, 111 U. S. 185, 193 (1884). But no acceptance would be deemed properly addressed and dispatched if it lacked, and thus was not sent to, the offeror’s address (or an address that the offeror held out as the place for receipt of an acceptance). See Restatement § 66, Comment b. It is also significant that service under §1608(a)(3) requires a signed returned receipt, a standard method for ensuring delivery to the addressee. Cf. Black’s Law Dictionary 1096 (10th ed. 2014) (defining \"certified mail\" as \"[m]ail for which the sender requests proof of delivery in the form of a receipt signed by the addressee\"). We assume that certified mail sent to a foreign minister will generally be signed for by a subordinate, but the person who signs for the minister’s certified mail in the foreign ministry itself presumably has authority to receive mail on the minister’s behalf and has been instructed on how that mail is to be handled. The same is much less likely to be true for an employee in the mailroom of an embassy. For all these reasons, we think that the most natural reading of §1608(a)(3) is that the service packet must bear the foreign minister’s name and customary address and that it be sent to the minister in a direct and expeditious way. And the minister’s customary office is the place where he or she generally works, not a farflung outpost that the minister may at most occasionally visit. B Several related provisions in §1608 support this reading. See Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989) (\"It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme\"). 1 One such provision is §1608(b)(3)(B). Section 1608(b) governs service on \"an agency or instrumentality of a foreign state.\" And like §1608(a)(3), §1608(b)(3)(B) requires delivery of a service packet to the intended recipient \"by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court.\" But §1608(b)(3)(B), unlike §1608(a)(3), contains prefatory language saying that service by this method is permissible \"if reasonably calculated to give actual notice.\" Respondents read §1608(a)(3) as embodying a similar requirement. See Brief for Respondents 34. At oral argument, respondents’ counsel stressed this point, arguing that respondents’ interpretation of §1608(a)(3) \"gives effect\" to the \"familiar\" due process standard articulated in Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950), which is \"the notion that [service] must be reasonably calculated to give notice.\" Tr. of Oral Arg. 37–38. This argument runs up against two well-settled principles of statutory interpretation. First, \"Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another.\" Department of Homeland Security v. MacLean, 574 U. S. ___, ___ (2015) (slip op., at 7). Because Congress included the \"reasonably calculated to give actual notice\" language only in §1608(b), and not in §1608(a), we resist the suggestion to read that language into §1608(a). Second, \"we are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.\" Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837 (1988). Here, respondents encounter a superfluity problem when they argue that the \"addressed and dispatched\" clause in §1608(a)(3) gives effect to the Mullane due process standard. They fail to account for the fact that §1608(b)(3)(B) contains both the \"addressed and dispatched\" and \"reasonably calculated to give actual notice\" requirements. If respondents were correct that \"addressed and dispatched\" means \"reasonably calculated to give notice,\" then the phrase \"reasonably calculated to give actual notice\" in §1608(b)(3) would be superfluous. Thus, as the dissent agrees, §1608(a)(3) \"does not deem a foreign state properly served solely because the service method is reasonably calculated to provide actual notice.\" Post, at 2 (opinion of THOMAS, J.). 2 Section 1608(b)(2) similarly supports our interpretation of §1608(a)(3). Section 1608(b)(2) provides for delivery of a service packet to an officer or a managing or general agent of the agency or instrumentality of a foreign state or \"to any other agent authorized by appointment or by law to receive service of process in the United States.\" This language is significant for three reasons. First, it expressly allows service on an agent. Second, it specifies the particular individuals who are permitted to be served as agents of the recipient. Third, it makes clear that service on the agent may occur in the United States if an agent here falls within the provision’s terms. If Congress had contemplated anything similar under §1608(a)(3), there is no apparent reason why it would not have included in that provision terms similar to those in §1608(b)(2). Respondents would have us believe that Congress was content to have the courts read such terms into §1608(a)(3). In view of §1608(b)(2), this seems unlikely.2 See also post, at 2 (\"Nor does the FSIA authorize service on a foreign state by utilizing an agent designated to receive process for the state\"). 3 Section 1608(c) further buttresses our reading of §1608(a)(3). Section 1608(c) sets out the rules for determining when service \"shall be deemed to have been made.\" For the first three methods of service under §1608(a), service is deemed to have occurred on the date indicated on \"the certification, signed and returned postal receipt, or other proof of service applicable to the method of service employed.\" §1608(c)(2). The sole exception is service under §1608(a)(4), which requires the Secretary of State to transmit a service packet to the foreign state through diplomatic channels. Under this method, once the Secretary has transmitted the packet, the Secretary must send to the clerk of the court \"a certified copy of the diplomatic note indicating when the papers were transmitted.\" §1608(a)(4). And when service is effected in this way, service is regarded as having occurred on the transmittal date shown on the certified copy of the diplomatic note. §1608(c)(1). Under all these methods, service is deemed to have occurred only when there is a strong basis for concluding that the service packet will very shortly thereafter come into the hands of a foreign official who will know what needs to be done. Under §1608(a)(4), where service is transmitted by the Secretary of State through diplomatic channels, there is presumably good reason to believe that the service packet will quickly come to the attention of a high-level foreign official, and thus service is regarded as having been completed on the date of transmittal. And under §§1608(a)(1), (2), and (3), where service is deemed to have occurred on the date shown on a document signed by the person who received it from the carrier, Congress presumably thought that the individuals who signed for the service packet could be trusted to ensure that the service packet is handled properly and expeditiously. It is easy to see why Congress could take that view with respect to a person designated for the receipt of process in a \"special arrangement for service between the plaintiff and the foreign state or political subdivision,\" §1608(a)(1), and a person so designated under \"an applicable international convention,\" §1608(a)(2). But what about §1608(a)(3), the provision now before us? Who is more comparable to those who sign for mail under §§1608(a)(1) and (2)? A person who works in the office of the foreign minister in the minister’s home country and is authorized to receive and process the minister’s mail? Or a mailroom employee in a foreign embassy? We think the answer is obvious, and therefore interpreting §1608(a)(3) to require that a service packet be sent to a foreign minister’s own office better harmonizes the rules for determining when service is deemed to have been made. Respondents seek to soften the blow of an untimely delivery to the minister by noting that the foreign state can try to vacate a default judgment under Federal Rule of Civil Procedure 55(c). Brief for Respondents 27. But that is a poor substitute for sure and timely receipt of service, since a foreign state would have to show \"good cause\" to vacate the judgment under that Rule. Here, as with the previously mentioned provisions in §1608, giving §1608(a)(3) its ordinary meaning better harmonizes the various provisions in §1608 and avoids the oddities that respondents’ interpretation would create. C The ordinary meaning of the \"addressed and dispatched\" requirement in §1608(a)(3) also has the virtue of avoiding potential tension with the Federal Rules of Civil Procedure and the Vienna Convention on Diplomatic Relations. 1 Take the Federal Rules of Civil Procedure first. At the time of the FSIA’s enactment, Rule 4(i), entitled \"Alternative provisions for service in a foreign-country,\" set out certain permissible methods of service on \"part[ies] in a foreign country.\" Fed. Rule Civ. Proc. 4(i)(1) (1976). One such method was \"by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served.\" Rule 4(i)(1)(D) (emphasis added). Rule 4(i)(2) further provided that \"proof of service\" pursuant to that method \"shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.\" (Emphasis added.) The current version of Rule 4 is similar. See Rules 4(f)(2)(C)(ii), 4(l)(2)(B). The virtually identical methods of service outlined in Rule 4 and §1608(a)(3) pose a problem for respondents’ position: If mailing a service packet to a foreign state’s embassy in the United States were sufficient for purposes of §1608(a)(3), then it would appear to be easier to serve the foreign state than to serve a person in that foreign state. This is so because a receipt signed by an embassy employee would not necessarily satisfy Rule 4 since such a receipt would not bear the signature of the foreign minister and might not constitute evidence that is sufficient to show that the service packet had actually been delivered to the minister. It would be an odd state of affairs for a foreign state’s inhabitants to enjoy more protections in federal courts than the foreign state itself, particularly given that the foreign state’s immunity from suit is at stake. The natural reading of §1608(a)(3) avoids that oddity. 2 Our interpretation of §1608(a)(3) avoids concerns regarding the United States’ obligations under the Vienna Convention on Diplomatic Relations. We have previously noted that the State Department \"helped to draft the FSIA’s language,\" and we therefore pay \"special attention\" to the Department’s views on sovereign immunity. Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 581 U. S. ___, ___ (2017) (slip op., at 9). It is also \"well settled that the Executive Branch’s interpretation of a treaty ‘is entitled to great weight.’\" Abbott v. Abbott, 560 U. S. 1, 15 (2010) (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 185 (1982)). Article 22(1) of the Vienna Convention provides: \"The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.\" Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U. S. T. 3237, T. I. A. S. No. 7502. Since at least 1974, the State Department has taken the position that Article 22(1)’s principle of inviolability precludes serving a foreign state by mailing process to the foreign state’s embassy in the United States. See Service of Legal Process by Mail on Foreign Governments in the United States, 71 Dept. State Bull. 458–459 (1974). In this case, the State Department has reiterated this view in amicus curiae briefs filed in this Court and in the Second Circuit. The Government also informs us that United States embassies do not accept service of process when the United States is sued in a foreign court, and the Government expresses concern that accepting respondents’ interpretation of §1608 might imperil this practice. Brief for United States as Amicus Curiae 25–26. Contending that the State Department held a different view of Article 22(1) before 1974, respondents argue that the Department’s interpretation of the Vienna Convention is wrong, but we need not decide this question. By giving §1608(a)(3) its most natural reading, we avoid the potential international implications of a contrary interpretation. III Respondents’ remaining arguments do not alter our conclusion. First, respondents contend that §1608(a)(3) says nothing about where the service packet must be sent. See Brief for Respondents 22 (\"the statute is silent as to the location where the service packet should be sent\"). But while it is true that §1608(a)(3) does not expressly provide where service must be sent, it is common ground that this provision must implicitly impose some requirement. Respondents acknowledge this when they argue that the provision demands that service be sent \"to a location that is likely to have a direct line of communication to the foreign minister.\" Id., at 34; cf. post, at 6 (stating that sending a letter to a Washington-based embassy \"with a direct line of communication\" to the foreign minister seems as efficient as sending it to the minister’s office in the foreign state). The question, then, is precisely what §1608(a)(3) implicitly requires. Respondents assure us that a packet sent to \"an embassy plainly would qualify,\" while a packet sent to \"a tourism office plainly would not.\" Brief for Respondents 34. But if the test is whether \"a location . . . is likely to have a direct line of communication to the foreign minister,\" ibid., it is not at all clear why service could not be sent to places in the United States other than a foreign state’s embassy. Why not allow the packet to be sent, for example, to a consulate? The residence of the foreign state’s ambassador? The foreign state’s mission to the United Nations? Would the answer depend on the size or presumed expertise of the staff at the delivery location? The difficult line-drawing problems that flow from respondents’ interpretation of §1608(a)(3) counsel in favor of maintaining a clear, administrable rule: The service packet must be mailed directly to the foreign minister at the minister’s office in the foreign state. Second, respondents (and the dissent, see post, at 5–6) contrast the language of §1608(a)(3) with that of §1608(a)(4), which says that service by this method requires that process be sent to the Secretary of State in \"Washington, District of Columbia.\" If Congress wanted to require that process under §1608(a)(3) be sent to a foreign minister’s office in the minister’s home country, respondents ask, why didn’t Congress use a formulation similar to that in §1608(a)(4)? This is respondents’ strongest argument, and in the end, we see no entirely satisfactory response other than that §1608(a) does not represent an example of perfect draftsmanship. We grant that the argument based on the contrasting language in §1608(a)(4) cuts in respondents’ favor, but it is outweighed in our judgment by the countervailing arguments already noted. Finally, respondents contend that it would be \"the height of unfairness to throw out [their] judgment\" based on the highly technical argument belatedly raised by petitioner. See Brief for Respondents 35. We understand respondents’ exasperation and recognize that enforcing compliance with §1608(a)(3) may seem like an empty formality in this particular case, which involves highly publicized litigation of which the Government of Sudan may have been aware prior to entry of default judgment. But there are circumstances in which the rule of law demands adherence to strict requirements even when the equities of a particular case may seem to point in the opposite direction. The service rules set out in §1608(a)(3), which apply to a category of cases with sensitive diplomatic implications, clearly fall into this category. Under those rules, all cases must be treated the same. Moreover, as respondents’ counsel acknowledged at oral argument, holding that Sudan was not properly served under §1608(a)(3) is not the end of the road. Tr. of Oral Arg. 56. Respondents may attempt service once again under §1608(a)(3), and if that attempt fails, they may turn to §1608(a)(4). When asked at argument to provide examples of any problems with service under §1608(a)(4), respondents’ counsel stated that he was unaware of any cases where such service failed. Id., at 59–62. We interpret §1608(a)(3) as it is most naturally understood: A service packet must be addressed and dispatched to the foreign minister at the minister’s office in the foreign state. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."},
{"docket_number": "17-419", "syllabus": "After petitioner James Dawson retired from the U. S. Marshals Service, his home State of West Virginia taxed his federal pension benefits as it does all former federal employees. The pension benefits of certain former state and local law enforcement employees, however, are exempt from state taxation. See W. Va. Code Ann. §11–21–12(c)(6). Mr. Dawson sued, alleging that the state statute violates the intergovernmental tax immunity doctrine as codified at 4 U. S. C. §111. Under that statute, the United States consents to state taxation of the pay or compensation of federal employees, but only if the state tax does not discriminate on the basis of the source of the pay or compensation. A West Virginia trial court found no significant differences between Mr. Dawson’s job duties as a federal marshal and those of the state and local law enforcement officers exempted from taxation and held that the state statute violates §111’s antidiscrimination provision. Reversing, the West Virginia Supreme Court of Appeals emphasized that the state tax exemption applies only to a narrow class of state retirees and was never intended to discriminate against former federal marshals. Held: The West Virginia statute unlawfully discriminates against Mr. Dawson as §111 forbids. A State violates §111 when it treats retired state employees more favorably than retired federal employees and no \"significant differences between the two classes\" justify the differential treatment. Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 814–816. Here, West Virginia expressly affords state law enforcement retirees a tax benefit that federal retirees cannot receive, and there are no \"significant differences\" between Mr. Dawson’s former job responsibilities and those of the tax-exempt state law enforcement retirees. The narrow preference should be permitted, the State argues, because it affects too few people to meaningfully interfere with federal government operations. Section 111, however, disallows any state tax that discriminates against a federal officer or employee—not just those that seem especially cumbersome. And in Davis the Court refused a similar invitation to add unwritten qualifications to §111. That is not to say that the narrowness of a state tax exemption is irrelevant. If a State exempts only a narrow subset of state retirees, it can comply with §111 by exempting only the comparable class of federal retirees. The State also argues that the statute is not intended to harm federal retirees but to help certain state retirees. The \"State’s interest in adopting the discriminatory tax,\" however, \"is simply irrelevant.\" Davis, 489 U. S., at 816. For reasons other than job responsibilities, the State insists, retired U. S. Marshals and tax-exempt state law enforcement retirees are not \"similarly situated.\" But the State’s statute does not draw any such lines. It singles out for preferential treatment retirement plans associated with particular state law enforcement officers. The distinguishing characteristic of the retirement plans is the nature of the jobs previously held by retirees who may participate in them. The state trial court found no \"significant differences\" between Mr. Dawson’s former job responsibilities as a U. S. Marshal and those of the state law enforcement retirees who qualify for the tax exemption, and the West Virginia Supreme Court of Appeals did not upset that finding. By submitting that Mr. Dawson’s former job responsibilities are also similar to those of other state law enforcement retirees who do not qualify for a tax exemption, the State mistakes the nature of the inquiry. The relevant question under §111 is not whether federal retirees are similarly situated to state retirees who do not receive a tax break; it is whether they are similarly situated to those who do. Finally, the State says that the real distinction may not be based on job duties at all but on the relative generosity of pension benefits. The statute as enacted, however, does not classify persons or groups on that basis. And an implicit but lawful distinction cannot save an express and unlawful one. See, e.g., id., at 817. Pp. 3–8. Reversed and remanded.", "opinion": "If you spent your career as a state law enforcement officer in West Virginia, you’re likely to be eligible for a generous tax exemption when you retire. But if you served in federal law enforcement, West Virginia will deny you the same benefit. The question we face is whether a State may discriminate against federal retirees in that way. For most of his career, James Dawson worked in the U. S. Marshals Service. After he retired, he began looking into the tax treatment of his pension. It turns out that his home State, West Virginia, doesn’t tax the pension benefits of certain former state law enforcement employees. But it does tax the benefits of all former federal employees. So Mr. Dawson brought this lawsuit alleging that West Virginia violated 4 U. S. C. §111. In that statute, the United States has consented to state taxation of the \"pay or compensation\" of \"officer[s] or employee[s] of the United States,\" but only if the \"taxation does not discriminate against the officer or employee because of the source of the pay or compensation.\" §111(a). Section 111 codifies a legal doctrine almost as old as the Nation. In McCulloch v. Maryland, 4 Wheat. 316 (1819), this Court invoked the Constitution’s Supremacy Clause to invalidate Maryland’s effort to levy a tax on the Bank of the United States. Chief Justice Marshall explained that \"the power to tax involves the power to destroy,\" and he reasoned that if States could tax the Bank they could \"defeat\" the federal legislative policy establishing it. Id., at 431–432. For the next few decades, this Court interpreted McCulloch \"to bar most taxation by one sovereign of the employees of another.\" Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 810 (1989). In time, though, the Court softened its stance and upheld neutral income taxes—those that treated federal and state employees with an even hand. See Helvering v. Gerhardt, 304 U. S. 405 (1938); Graves v. New York ex rel. O’Keefe, 306 U. S. 466 (1939). So eventually the intergovernmental tax immunity doctrine came to be understood to bar only discriminatory taxes. It was this understanding that Congress \"consciously . . . drew upon\" when adopting §111 in 1939. Davis, 489 U. S., at 813. It is this understanding, too, that has animated our application of §111. Since the statute’s adoption, we have upheld an Alabama income tax that did not discriminate on the basis of the source of the employees’ compensation. Jefferson County v. Acker, 527 U. S. 423 (1999). But we have invalidated a Michigan tax that discriminated \"in favor of retired state employees and against retired federal employees.\" Davis, 489 U. S., at 814. We have struck down a Kansas law that taxed the retirement benefits of federal military personnel at a higher rate than state and local government retirement benefits. Barker v. Kansas, 503 U. S. 594, 599 (1992). And we have rejected a Texas scheme that imposed a property tax on a private company operating on land leased from the federal government, but a \"less burdensome\" tax on property leased from the State. Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S. 376, 378, 380 (1960). Mr. Dawson’s own attempt to invoke §111 met with mixed success. A West Virginia trial court found it \"undisputed\" that \"there are no significant differences between Mr. Dawson’s powers and duties as a US Marshal and the powers and duties of the state and local law enforcement officers\" that West Virginia exempts from income tax. App. to Pet. for Cert. 22a. In the trial court’s judgment, the State’s statute thus represented \"precisely the type of favoritism\" §111 prohibits. Id., at 23a. But the West Virginia Supreme Court of Appeals saw it differently. In reversing, the court emphasized that relatively few state employees receive the tax break denied Mr. Dawson. The court stressed, too, that the statute’s \"intent . . . was to give a benefit to a narrow class of state retirees,\" not to harm federal retirees. Id., at 15a. Because cases in this field have yielded inconsistent results, much as this one has, we granted certiorari to afford additional guidance. 585 U. S. ___ (2018). We believe the state trial court had it right. A State violates §111 when it treats retired state employees more favorably than retired federal employees and no \"significant differences between the two classes\" justify the differential treatment. Davis, 489 U. S., at 814–816 (1989) (internal quotation marks omitted); Phillips Chemical Co., 361 U. S., at 383. Here, West Virginia expressly affords state law enforcement retirees a tax benefit that federal retirees cannot receive. And before us everyone accepts the trial court’s factual finding that there aren’t any \"significant differences\" between Mr. Dawson’s former job responsibilities and those of the tax-exempt state law enforcement retirees. Given all this, we have little difficulty concluding that West Virginia’s law unlawfully \"discriminate[s]\" against Mr. Dawson \"because of the source of [his] pay or compensation,\" just as §111 forbids. The State offers this ambitious rejoinder. Even if its statute favors some state law enforcement retirees, the favored class is very small. Most state retirees are treated no better than Mr. Dawson. And this narrow preference, the State suggests, should be permitted because it affects so few people that it couldn’t meaningfully interfere with the operations of the federal government. We are unpersuaded. Section 111 disallows any state tax that discriminates against a federal officer or employee—not just those that seem to us especially cumbersome. Nor are we inclined to accept West Virginia’s invitation to adorn §111 with a new and judicially manufactured qualification that cannot be found in its text. In fact, we have already refused an almost identical request. In Davis, we rejected Michigan’s suggestion that a discriminatory state income tax should be allowed to stand so long as it treats federal employees or retirees the same as \"the vast majority of voters in the State.\" 489 U. S., at 815, n. 4. We rejected, too, any suggestion that a discriminatory tax is permissible so long as it \"does not interfere with the Federal Government’s ability to perform its governmental functions.\" Id., at 814. In fact, as long ago as McCulloch, Chief Justice Marshall warned against enmeshing courts in the \"perplexing\" business, \"so unfit for the judicial department,\" of attempting to delineate \"what degree of taxation is the legitimate use, and what degree may amount to the abuse of power.\" 4 Wheat., at 430. That’s not to say the breadth or narrowness of a state tax exemption is irrelevant. Under §111, the scope of a State’s tax exemption may affect the scope of its resulting duties. So if a State exempts from taxation all state employees, it must likewise exempt all federal employees. Conversely, if the State decides to exempt only a narrow subset of state retirees, the State can comply with §111 by exempting only the comparable class of federal retirees. But the narrowness of a discriminatory state tax law has never been enough to render it necessarily lawful. With its primary argument lost, the State now proceeds more modestly. Echoing the West Virginia Supreme Court of Appeals, the State argues that we should uphold its statute because it isn’t intended to harm federal retirees, only to help certain state retirees. But under the terms of §111, the \"State’s interest in adopting the discriminatory tax, no matter how substantial, is simply irrelevant.\" Davis, 489 U. S., at 816. We can safely assume that discriminatory laws like West Virginia’s are almost always enacted with the purpose of benefiting state employees rather than harming their federal counterparts. Yet that wasn’t enough to save the state statutes in Davis, Barker, or Phillips, and it can’t be enough here. Under §111 what matters isn’t the intent lurking behind the law but whether the letter of the law \"treat[s] those who deal with\" the federal government \"as well as it treats those with whom [the State] deals itself.\" Phillips Chemical Co., 361 U. S., at 385. If treatment rather than intent is what matters, the State suggests that it should still prevail for other reasons. Section 111 prohibits \"discriminat[ion],\" something we’ve often described as treating similarly situated persons differently. See Davis, 489 U. S., at 815–816; Phillips Chemical Co., 361 U. S., at 383. And before us West Virginia insists that even if retired U. S. Marshals and tax-exempt state law enforcement retirees had similar job responsibilities, they aren’t \"similarly situated\" for other reasons. Put another way, the State contends that the difference in treatment its law commands doesn’t qualify as unlawful discrimination because it is \"directly related to, and justified by,\" a lawful and \"significant difference\" between the two classes. Davis, 489 U. S., at 816 (internal quotation marks and alteration omitted). In approaching this argument, everyone before us agrees on at least one thing. Whether a State treats similarly situated state and federal employees differently depends on how the State has defined the favored class. See id., at 817. So if the State defines the favored class by reference to job responsibilities, a similarly situated federal worker will be one who performs comparable duties. But if the State defines the class by reference to some other criteria, our attention should naturally turn there. If a State gives a tax benefit to all retirees over a certain age, for example, the comparable federal retiree would be someone who is also over that age. So how has West Virginia chosen to define the favored class in this case? The state statute singles out for preferential treatment retirement plans associated with West Virginia police, firefighters, and deputy sheriffs. See W. Va. Code Ann. §11–21–12(c)(6) (Lexis 2017). The distinguishing characteristic of these plans is the nature of the jobs previously held by retirees who may participate in them; thus, a similarly situated federal retiree is someone who had similar job responsibilities to a state police officer, firefighter, or deputy sheriff. The state trial court correctly focused on this point of comparison and found no \"significant differences\" between Mr. Dawson’s former job responsibilities as a U. S. Marshal and those of the state law enforcement retirees who qualify for the tax exemption. App. to Pet. for Cert. 22a. Nor did the West Virginia Supreme Court of Appeals upset this factual finding. So looking to how the State has chosen to define its favored class only seems to confirm that it has treated similarly situated persons differently because of the source of their compensation. Of course, West Virginia sees it otherwise. It accepts (for now) that its statute distinguishes between persons based on their former job duties. It accepts, too, the trial court’s finding that Mr. Dawson’s former job responsibilities are materially identical to those of state retirees who qualify for its tax exemption. But, the State submits, Mr. Dawson’s former job responsibilities are also similar to those of other state law enforcement retirees who don’t qualify for its tax exemption. And, the State insists, the fact that it treats federal retirees no worse than (some) similarly situated state employees should be enough to save its statute. But this again mistakes the nature of our inquiry. Under §111, the relevant question isn’t whether federal retirees are similarly situated to state retirees who don’t receive a tax benefit; the relevant question is whether they are similarly situated to those who do. So, for example, in Phillips we compared the class of federal lessees with the favored class of state lessees, even though the State urged us to focus instead on the disfavored class of private lessees. 361 U. S., at 381–382. In Davis, we likewise rejected the State’s effort to compare the class of federal retirees with state residents who did not benefit from the tax exemption rather than those who did. See 489 U. S., at 815, n. 4. At this point the State is left to play its final card. Now, it says, maybe the real distinction its statute draws isn’t based on former job duties at all. Maybe its statute actually favors certain state law enforcement retirees only because their pensions are less generous than those of their federal law enforcement counterparts. At the least, the State suggests, we should remand the case to the West Virginia courts to explore this possibility. The problem here is fundamental. While the State was free to draw whatever classifications it wished, the statute it enacted does not classify persons or groups based on the relative generosity of their pension benefits. Instead, it extends a special tax benefit to retirees who served as West Virginia police officers, firefighters, or deputy sheriffs—and it categorically denies that same benefit to retirees who served in similar federal law enforcement positions. Even if Mr. Dawson’s pension turned out to be identical to a state law enforcement officer’s pension, the law as written would deny him a tax exemption. West Virginia’s law thus discriminates \"because of the source of . . . compensation or pay\" in violation of §111. Whether the unlawful classification found in the text of a statute might serve as some sort of proxy for a lawful classification hidden behind it is neither here nor there. No more than a beneficent legislative intent, an implicit but lawful distinction cannot save an express and unlawful one. Our precedent confirms this too. In Davis, Michigan argued that a state law expressly discriminating between federal and state retirees was really just distinguishing between those with more and less generous pensions. Id., at 816. We rejected this attempt to rerationalize the statute, explaining that \"[a] tax exemption truly intended to account for differences in retirement benefits would not discriminate on the basis of the source of those benefits\" but \"would discriminate on the basis of the amount of benefits received by individual retirees.\" Id., at 817. The fact is, when States seek to tax the use of a fellow sovereign’s property, the Constitution and Congress have always carefully constrained their authority. Id., at 810– 814. And in this sensitive field it is not too much to ask that, if a State wants to draw a distinction based on the generosity of pension benefits, it enact a law that actually does that. Because West Virginia’s statute unlawfully discriminates against Mr. Dawson, we reverse the judgment of the West Virginia Supreme Court of Appeals and remand the case for further proceedings not inconsistent with this opinion, including the determination of an appropriate remedy."},
{"docket_number": "17-1091", "syllabus": "Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. At the time of Timbs’s arrest, the police seized a Land Rover SUV Timbs had purchased for $42,000 with money he received from an insurance policy when his father died. The State sought civil forfeiture of Timbs’s vehicle, charging that the SUV had been used to transport heroin. Observing that Timbs had recently purchased the vehicle for more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction, the trial court denied the State’s request. The vehicle’s forfeiture, the court determined, would be grossly disproportionate to the gravity of Timbs’s offense, and therefore unconstitutional under the Eighth Amendment’s Excessive Fines Clause. The Court of Appeals of Indiana affirmed, but the Indiana Supreme Court reversed, holding that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions. Held: The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause. Pp. 2–9. (a) The Fourteenth Amendment’s Due Process Clause incorporates and renders applicable to the States Bill of Rights protections \"fundamental to our scheme of ordered liberty,\" or \"deeply rooted in this Nation’s history and tradition.\" McDonald v. Chicago, 561 U. S. 742, 767 (alterations omitted). If a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires. Pp. 2–3. (b) The prohibition embodied in the Excessive Fines Clause carries forward protections found in sources from Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day. Protection against excessive fines has been a constant shield throughout Anglo-American history for good reason: Such fines undermine other liberties. They can be used, e.g., to retaliate against or chill the speech of political enemies. They can also be employed, not in service of penal purposes, but as a source of revenue. The historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is indeed overwhelming. Pp. 3–7. (c) Indiana argues that the Clause does not apply to its use of civil in rem forfeitures, but this Court held in Austin v. United States, 509 U. S. 602, that such forfeitures fall within the Clause’s protection when they are at least partially punitive. Indiana cannot prevail unless the Court overrules Austin or holds that, in light of Austin, the Excessive Fines Clause is not incorporated because its application to civil in rem forfeitures is neither fundamental nor deeply rooted. The first argument, overturning Austin, is not properly before this Court. The Indiana Supreme Court held only that the Excessive Fines Clause did not apply to the States. The court did not address the Clause’s application to civil in rem forfeitures, nor did the State ask it to do so. Timbs thus sought this Court’s review only of the question whether the Excessive Fines Clause is incorporated by the Fourteenth Amendment. Indiana attempted to reformulate the question to ask whether the Clause restricted States’ use of civil in rem forfeitures and argued on the merits that Austin was wrongly decided. Respondents’ \"right, . . . to restate the questions presented,\" however, \"does not give them the power to expand [those] questions,\" Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 279, n. 10 (emphasis deleted), particularly where the proposed reformulation would lead the Court to address a question neither pressed nor passed upon below, cf. Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7. The second argument, that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures, misapprehends the nature of the incorporation inquiry. In considering whether the Fourteenth Amendment incorporates a Bill of Rights protection, this Court asks whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. To suggest otherwise is inconsistent with the approach taken in cases concerning novel applications of rights already deemed incorporated. See, e.g., Packingham v. North Carolina, 582 U. S. ___, ___. The Excessive Fines Clause is thus incorporated regardless of whether application of the Clause to civil in rem forfeitures is itself fundamental or deeply rooted. Pp. 7–9. 84 N. E. 3d 1179, vacated and remanded.", "opinion": "Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV Timbs had purchased for about $42,000. Timbs paid for the vehicle with money he received from an insurance policy when his father died. The State engaged a private law firm to bring a civil suit for forfeiture of Timbs’s Land Rover, charging that the vehicle had been used to transport heroin. After Timbs’s guilty plea in the criminal case, the trial court held a hearing on the forfeiture demand. Although finding that Timbs’s vehicle had been used to facilitate violation of a criminal statute, the court denied the requested forfeiture, observing that Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction. Forfeiture of the Land Rover, the court determined, would be grossly disproportionate to the gravity of Timbs’s offense, hence unconstitutional under the Eighth Amendment’s Excessive Fines Clause. The Court of Appeals of Indiana affirmed that determination, but the Indiana Supreme Court reversed. 84 N. E. 3d 1179 (2017). The Indiana Supreme Court did not decide whether the forfeiture would be excessive. Instead, it held that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions. We granted certiorari. 585 U. S. __ (2018). The question presented: Is the Eighth Amendment’s Excessive Fines Clause an \"incorporated\" protection applicable to the States under the Fourteenth Amendment’s Due Process Clause? Like the Eighth Amendment’s proscriptions of \"cruel and unusual punishment\" and \"[e]xcessive bail,\" the protection against excessive fines guards against abuses of government’s punitive or criminallaw-enforcement authority. This safeguard, we hold, is \"fundamental to our scheme of ordered liberty,\" with \"dee[p] root[s] in [our] history and tradition.\" McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment. I A When ratified in 1791, the Bill of Rights applied only to the Federal Government. Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). \"The constitutional Amendments adopted in the aftermath of the Civil War,\" however, \"fundamentally altered our country’s federal system.\" McDonald, 561 U. S., at 754. With only \"a handful\" of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States. Id., at 764–765, and nn. 12–13. A Bill of Rights protection is incorporated, we have explained, if it is \"fundamental to our scheme of ordered liberty,\" or \"deeply rooted in this Nation’s history and tradition.\" Id., at 767 (internal quotation marks omitted; emphasis deleted). Incorporated Bill of Rights guarantees are \"enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.\" Id., at 765 (internal quotation marks omitted). Thus, if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.1 B Under the Eighth Amendment, \"[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.\" Taken together, these Clauses place \"parallel limitations\" on \"the power of those entrusted with the criminal-law function of government.\" Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 263 (1989) (quoting Ingraham v. Wright, 430 U. S. 651, 664 (1977)). Directly at issue here is the phrase \"nor excessive fines imposed,\" which \"limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’\" United States v. Bajakajian, 524 U. S. 321, 327–328 (1998) (quoting Austin v. United States, 509 U. S. 602, 609–610 (1993)). The Fourteenth Amendment, we hold, incorporates this protection. The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that \"[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . .\" §20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225).2 As relevant here, Magna Carta required that economic sanctions \"be proportioned to the wrong\" and \"not be so large as to deprive [an offender] of his livelihood.\" BrowningFerris, 492 U. S., at 271. See also 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (\"[N]o man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear . . . .\"). But cf. Bajakajian, 524 U. S., at 340, n. 15 (taking no position on the question whether a person’s income and wealth are relevant considerations in judging the excessiveness of a fine). Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay. E.g., The Grand Remonstrance ¶¶17, 34 (1641), in The Constitutional Documents of the Puritan Revolution 1625–1660, pp. 210, 212 (S. Gardiner ed., 3d ed. rev. 1906); Browning-Ferris, 492 U. S., at 267. When James II was overthrown in the Glorious Revolution, the attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that \"excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.\" 1 Wm. & Mary, ch. 2, §10, in 3 Eng. Stat. at Large 441 (1689). Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: \"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.\" Adoption of the Excessive Fines Clause was in tune not only with English law; the Clause resonated as well with similar colonial-era provisions. See, e.g., Pa. Frame of Govt., Laws Agreed Upon in England, Art. XVIII (1682), in 5 Federal and State Constitutions 3061 (F. Thorpe ed. 1909) (\"[A]ll fines shall be moderate, and saving men’s contenements, merchandize, or wainage.\"). In 1787, the constitutions of eight States—accounting for 70% of the U. S. population—forbade excessive fines. Calabresi, Agudo, & Dore, State Bills of Rights in 1787 and 1791, 85 S. Cal. L. Rev. 1451, 1517 (2012). An even broader consensus obtained in 1868 upon ratification of the Fourteenth Amendment. By then, the constitutions of 35 of the 37 States—accounting for over 90% of the U. S. population—expressly prohibited excessive fines. Calabresi & Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 82 (2008). Notwithstanding the States’ apparent agreement that the right guaranteed by the Excessive Fines Clause was fundamental, abuses continued. Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad proscriptions on \"vagrancy\" and other dubious offenses. See, e.g., Mississippi Vagrant Law, Laws of Miss. §2 (1865), in 1 W. Fleming, Documentary History of Reconstruction 283–285 (1950). When newly freed slaves were unable to pay imposed fines, States often demanded involuntary labor instead. E.g., id. §5; see Finkelman, John Bingham and the Background to the Fourteenth Amendment, 36 Akron L. Rev 671, 681–685 (2003) (describing Black Codes’ use of fines and other methods to \"replicate, as much as possible, a system of involuntary servitude\"). Congressional debates over the Civil Rights Act of 1866, the joint resolution that became the Fourteenth Amendment, and similar measures repeatedly mentioned the use of fines to coerce involuntary labor. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 443 (1866); id., at 1123–1124. Today, acknowledgment of the right’s fundamental nature remains widespread. As Indiana itself reports, all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality. Brief in Opposition 8–9. Indeed, Indiana explains that its own Supreme Court has held that the Indiana Constitution should be interpreted to impose the same restrictions as the Eighth Amendment. Id., at 9 (citing Norris v. State, 271 Ind. 568, 576, 394 N. E. 2d 144, 150 (1979)). For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago. See Browning-Ferris, 492 U. S., at 267. Even absent a political motive, fines may be employed \"in a measure out of accord with the penal goals of retribution and deterrence,\" for \"fines are a source of revenue,\" while other forms of punishment \"cost a State money.\" Harmelin v. Michigan, 501 U. S. 957, 979, n. 9 (1991) (opinion of Scalia, J.) (\"it makes sense to scrutinize governmental action more closely when the State stands to benefit\"). This concern is scarcely hypothetical. See Brief for American Civil Liberties Union et al. as Amici Curiae 7 (\"Perhaps because they are politically easier to impose than generally applicable taxes, state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue.\"). In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both \"fundamental to our scheme of ordered liberty\" and \"deeply rooted in this Nation’s history and tradition.\" McDonald, 561 U. S., at 767 (internal quotation marks omitted; emphasis deleted). II The State of Indiana does not meaningfully challenge the case for incorporating the Excessive Fines Clause as a general matter. Instead, the State argues that the Clause does not apply to its use of civil in rem forfeitures because, the State says, the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted. In Austin v. United States, 509 U. S. 602 (1993), however, this Court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially punitive. Austin arose in the federal context. But when a Bill of Rights protection is incorporated, the protection applies \"identically to both the Federal Government and the States.\" McDonald, 561 U. S., at 766, n. 14. Accordingly, to prevail, Indiana must persuade us either to overrule our decision in Austin or to hold that, in light of Austin, the Excessive Fines Clause is not incorporated because the Clause’s application to civil in rem forfeitures is neither fundamental nor deeply rooted. The first argument is not properly before us, and the second misapprehends the nature of our incorporation inquiry. A In the Indiana Supreme Court, the State argued that forfeiture of Timbs’s SUV would not be excessive. See Brief in Opposition 5. It never argued, however, that civil in rem forfeitures were categorically beyond the reach of the Excessive Fines Clause. The Indiana Supreme Court, for its part, held that the Clause did not apply to the States at all, and it nowhere addressed the Clause’s application to civil in rem forfeitures. See 84 N. E. 3d 1179. Accordingly, Timbs sought our review of the question \"[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.\" Pet. for Cert. i. In opposing review, Indiana attempted to reformulate the question to ask \"[w]hether the Eighth Amendment’s Excessive Fines Clause restricts States’ use of civil asset forfeitures.\" Brief in Opposition i. And on the merits, Indiana has argued not only that the Clause is not incorporated, but also that Austin was wrongly decided. Respondents’ \"right, in their brief in opposition, to restate the questions presented,\" however, \"does not give them the power to expand [those] questions.\" Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 279, n. 10 (1993) (emphasis deleted). That is particularly the case where, as here, a respondent’s reformulation would lead us to address a question neither pressed nor passed upon below. Cf. Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (\"[W]e are a court of review, not of first view . . . .\"). We thus decline the State’s invitation to reconsider our unanimous judgment in Austin that civil in rem forfeitures are fines for purposes of the Eighth Amendment when they are at least partially punitive. B As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated. For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was \"applicable to the States under the Due Process Clause of the Fourteenth Amendment.\" Id., at ___ (slip op., at 1). We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted. See also, e.g., Riley v. California, 573 U. S. 373 (2014) (holding, without separately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinarily violates the Fourth Amendment). Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged. For the reasons stated, the judgment of the Indiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion."},
{"docket_number": "17-1272", "syllabus": "Respondent Archer & White Sales, Inc., sued petitioner Henry Schein, Inc., alleging violations of federal and state antitrust law and seeking both money damages and injunctive relief. The relevant contract between the parties provided for arbitration of any dispute arising under or related to the agreement, except for, among other things, actions seeking injunctive relief. Invoking the Federal Arbitration Act, Schein asked the District Court to refer the matter to arbitration, but Archer & White argued that the dispute was not subject to arbitration because its complaint sought injunctive relief, at least in part. Schein contended that because the rules governing the contract provide that arbitrators have the power to resolve arbitrability questions, an arbitrator—not the court—should decide whether the arbitration agreement applied. Archer & White countered that Schein’s argument for arbitration was wholly groundless, so the District Court could resolve the threshold arbitrability question. The District Court agreed with Archer & White and denied Schein’s motion to compel arbitration. The Fifth Circuit affirmed. Held: The \"wholly groundless\" exception to arbitrability is inconsistent with the Federal Arbitration Act and this Court’s precedent. Under the Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 67. The parties to such a contract may agree to have an arbitrator decide not only the merits of a particular dispute, but also \" ‘gateway’ questions of ‘arbitrability.’ \" Id., at 68– 69. Therefore, when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract, even if the court thinks that the arbitrability claim is wholly groundless. That conclusion follows also from this Court’s precedent. See AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649– 650. Archer & White’s counterarguments are unpersuasive. First, its argument that §§3 and 4 of the Act should be interpreted to mean that a court must always resolve questions of arbitrability has already been addressed and rejected by this Court. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 944. Second, its argument that §10 of the Act—which provides for back-end judicial review of an arbitrator’s decision if an arbitrator has \"exceeded\" his or her \"powers\"—supports the conclusion that the court at the front end should also be able to say that the underlying issue is not arbitrable is inconsistent with the way Congress designed the Act. And it is not this Court’s proper role to redesign the Act. Third, its argument that it would be a waste of the parties’ time and money to send wholly groundless arbitrability questions to an arbitrator ignores the fact that the Act contains no \"wholly groundless\" exception. This Court may not engraft its own exceptions onto the statutory text. Nor is it likely that the exception would save time and money systemically even if it might do so in some individual cases. Fourth, its argument that the exception is necessary to deter frivolous motions to compel arbitration overstates the potential problem. Arbitrators are already capable of efficiently disposing of frivolous cases and deterring frivolous motions, and such motions do not appear to have caused a substantial problem in those Circuits that have not recognized a \"wholly groundless\" exception. The Fifth Circuit may address the question whether the contract at issue in fact delegated the arbitrability question to an arbitrator, as well as other properly preserved arguments, on remand. Pp. 4–8. 878 F. 3d 488, vacated and remanded.", "opinion": "Under the Federal Arbitration Act, parties to a contract may agree that an arbitrator rather than a court will resolve disputes arising out of the contract. When a dispute arises, the parties sometimes may disagree not only about the merits of the dispute but also about the threshold arbitrability question—that is, whether their arbitration agreement applies to the particular dispute. Who decides that threshold arbitrability question? Under the Act and this Court’s cases, the question of who decides arbitrability is itself a question of contract. The Act allows parties to agree by contract that an arbitrator, rather than a court, will resolve threshold arbitrability questions as well as underlying merits disputes. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 68−70 (2010); First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 943−944 (1995). Even when a contract delegates the arbitrability question to an arbitrator, some federal courts nonetheless will short-circuit the process and decide the arbitrability question themselves if the argument that the arbitration agreement applies to the particular dispute is \"wholly groundless.\" The question presented in this case is whether the \"wholly groundless\" exception is consistent with the Federal Arbitration Act. We conclude that it is not. The Act does not contain a \"wholly groundless\" exception, and we are not at liberty to rewrite the statute passed by Congress and signed by the President. When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract. We vacate the contrary judgment of the Court of Appeals. I Archer and White is a small business that distributes dental equipment. Archer and White entered into a contract with Pelton and Crane, a dental equipment manufacturer, to distribute Pelton and Crane’s equipment. The relationship eventually soured. As relevant here, Archer and White sued Pelton and Crane’s successor-in-interest and Henry Schein, Inc. (collectively, Schein) in Federal District Court in Texas. Archer and White’s complaint alleged violations of federal and state antitrust law, and sought both money damages and injunctive relief. The relevant contract between the parties provided: \"Disputes. This Agreement shall be governed by the laws of the State of North Carolina. Any dispute arising under or related to this Agreement (except for actions seeking injunctive relief and disputes related to trademarks, trade secrets, or other intellectual property of [Schein]), shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association [(AAA)]. The place of arbitration shall be in Charlotte, North Carolina.\" App. to Pet. for Cert. 3a. After Archer and White sued, Schein invoked the Federal Arbitration Act and asked the District Court to refer the parties’ antitrust dispute to arbitration. Archer and White objected, arguing that the dispute was not subject to arbitration because Archer and White’s complaint sought injunctive relief, at least in part. According to Archer and White, the parties’ contract barred arbitration of disputes when the plaintiff sought injunctive relief, even if only in part. The question then became: Who decides whether the antitrust dispute is subject to arbitration? The rules of the American Arbitration Association provide that arbitrators have the power to resolve arbitrability questions. Schein contended that the contract’s express incorporation of the American Arbitration Association’s rules meant that an arbitrator—not the court—had to decide whether the arbitration agreement applied to this particular dispute. Archer and White responded that in cases where the defendant’s argument for arbitration is wholly groundless—as Archer and White argued was the case here—the District Court itself may resolve the threshold question of arbitrability. Relying on Fifth Circuit precedent, the District Court agreed with Archer and White about the existence of a \"wholly groundless\" exception, and ruled that Schein’s argument for arbitration was wholly groundless. The District Court therefore denied Schein’s motion to compel arbitration. The Fifth Circuit affirmed. In light of disagreement in the Courts of Appeals over whether the \"wholly groundless\" exception is consistent with the Federal Arbitration Act, we granted certiorari, 585 U. S. ___ (2018). Compare 878 F. 3d 488 (CA5 2017) (case below); Simply Wireless, Inc. v. T-Mobile US, Inc., 877 F. 3d 522 (CA4 2017); Douglas v. Regions Bank, 757 F. 3d 460 (CA5 2014); Turi v. Main Street Adoption Servs., LLP, 633 F. 3d 496 (CA6 2011); Qualcomm, Inc. v. Nokia Corp., 466 F. 3d 1366 (CA Fed. 2006), with Belnap v. Iasis Healthcare, 844 F. 3d 1272 (CA10 2017); Jones v. Waffle House, Inc., 866 F. 3d 1257 (CA11 2017); Douglas, 757 F. 3d, at 464 (Dennis, J., dissenting). II In 1925, Congress passed and President Coolidge signed the Federal Arbitration Act. As relevant here, the Act provides: \"A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.\" 9 U. S. C. §2. Under the Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. Rent-A-Center, 561 U. S., at 67. Applying the Act, we have held that parties may agree to have an arbitrator decide not only the merits of a particular dispute but also \"‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.\" Id., at 68–69; see also First Options, 514 U. S., at 943. We have explained that an \"agreement to arbitrate a gateway issue is simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other.\" Rent-A-Center, 561 U. S., at 70. Even when the parties’ contract delegates the threshold arbitrability question to an arbitrator, the Fifth Circuit and some other Courts of Appeals have determined that the court rather than an arbitrator should decide the threshold arbitrability question if, under the contract, the argument for arbitration is wholly groundless. Those courts have reasoned that the \"wholly groundless\" exception enables courts to block frivolous attempts to transfer disputes from the court system to arbitration. We conclude that the \"wholly groundless\" exception is inconsistent with the text of the Act and with our precedent. We must interpret the Act as written, and the Act in turn requires that we interpret the contract as written. When the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract. In those circumstances, a court possesses no power to decide the arbitrability issue. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless. That conclusion follows not only from the text of the Act but also from precedent. We have held that a court may not \"rule on the potential merits of the underlying\" claim that is assigned by contract to an arbitrator, \"even if it appears to the court to be frivolous.\" AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649–650 (1986). A court has \"‘no business weighing the merits of the grievance’\" because the \"‘agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.’\" Id., at 650 (quoting Steelworkers v. American Mfg. Co., 363 U. S. 564, 568 (1960)). That AT&T Technologies principle applies with equal force to the threshold issue of arbitrability. Just as a court may not decide a merits question that the parties have delegated to an arbitrator, a court may not decide an arbitrability question that the parties have delegated to an arbitrator. In an attempt to overcome the statutory text and this Court’s cases, Archer and White advances four main arguments. None is persuasive. First, Archer and White points to §§3 and 4 of the Federal Arbitration Act. Section 3 provides that a court must stay litigation \"upon being satisfied that the issue\" is \"referable to arbitration\" under the \"agreement.\" Section 4 says that a court, in response to a motion by an aggrieved party, must compel arbitration \"in accordance with the terms of the agreement\" when the court is \"satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue.\" Archer and White interprets those provisions to mean, in essence, that a court must always resolve questions of arbitrability and that an arbitrator never may do so. But that ship has sailed. This Court has consistently held that parties may delegate threshold arbitrability questions to the arbitrator, so long as the parties’ agreement does so by \"clear and unmistakable\" evidence. First Options, 514 U. S., at 944 (alterations omitted); see also Rent-A-Center, 561 U. S., at 69, n. 1. To be sure, before referring a dispute to an arbitrator, the court determines whether a valid arbitration agreement exists. See 9 U. S. C. §2. But if a valid agreement exists, and if the agreement delegates the arbitrability issue to an arbitrator, a court may not decide the arbitrability issue. Second, Archer and White cites §10 of the Act, which provides for back-end judicial review of an arbitrator’s decision if an arbitrator has \"exceeded\" his or her \"powers.\" §10(a)(4). According to Archer and White, if a court at the back end can say that the underlying issue was not arbitrable, the court at the front end should also be able to say that the underlying issue is not arbitrable. The dispositive answer to Archer and White’s §10 argument is that Congress designed the Act in a specific way, and it is not our proper role to redesign the statute. Archer and White’s §10 argument would mean, moreover, that courts presumably also should decide frivolous merits questions that have been delegated to an arbitrator. Yet we have already rejected that argument: When the parties’ contract assigns a matter to arbitration, a court may not resolve the merits of the dispute even if the court thinks that a party’s claim on the merits is frivolous. AT&T Technologies, 475 U. S., at 649−650. So, too, with arbitrability. Third, Archer and White says that, as a practical and policy matter, it would be a waste of the parties’ time and money to send the arbitrability question to an arbitrator if the argument for arbitration is wholly groundless. In cases like this, as Archer and White sees it, the arbitrator will inevitably conclude that the dispute is not arbitrable and then send the case back to the district court. So why waste the time and money? The short answer is that the Act contains no \"wholly groundless\" exception, and we may not engraft our own exceptions onto the statutory text. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 556−557 (2005). In addition, contrary to Archer and White’s claim, it is doubtful that the \"wholly groundless\" exception would save time and money systemically even if it might do so in some individual cases. Archer and White assumes that it is easy to tell when an argument for arbitration of a particular dispute is wholly groundless. We are dubious. The exception would inevitably spark collateral litigation (with briefing, argument, and opinion writing) over whether a seemingly unmeritorious argument for arbitration is wholly groundless, as opposed to groundless. We see no reason to create such a time-consuming sideshow. Archer and White further assumes that an arbitrator would inevitably reject arbitration in those cases where a judge would conclude that the argument for arbitration is wholly groundless. Not always. After all, an arbitrator might hold a different view of the arbitrability issue than a court does, even if the court finds the answer obvious. It is not unheard-of for one fair-minded adjudicator to think a decision is obvious in one direction but for another fair-minded adjudicator to decide the matter the other way. Fourth, Archer and White asserts another policy argument: that the \"wholly groundless\" exception is necessary to deter frivolous motions to compel arbitration. Again, we may not rewrite the statute simply to accommodate that policy concern. In any event, Archer and White overstates the potential problem. Arbitrators can efficiently dispose of frivolous cases by quickly ruling that a claim is not in fact arbitrable. And under certain circumstances, arbitrators may be able to respond to frivolous arguments for arbitration by imposing fee-shifting and cost-shifting sanctions, which in turn will help deter and remedy frivolous motions to compel arbitration. We are not aware that frivolous motions to compel arbitration have caused a substantial problem in those Circuits that have not recognized a \"wholly groundless\" exception. In sum, we reject the \"wholly groundless\" exception. The exception is inconsistent with the statutory text and with our precedent. It confuses the question of who decides arbitrability with the separate question of who prevails on arbitrability. When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract. We express no view about whether the contract at issue in this case in fact delegated the arbitrability question to an arbitrator. The Court of Appeals did not decide that issue. Under our cases, courts \"should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so.\" First Options, 514 U. S., at 944 (alterations omitted). On remand, the Court of Appeals may address that issue in the first instance, as well as other arguments that Archer and White has properly preserved. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "17-340", "syllabus": "Petitioner New Prime Inc. is an interstate trucking company, and respondent Dominic Oliveira is one of its drivers. Mr. Oliveira works under an operating agreement that calls him an independent contractor and contains a mandatory arbitration provision. When Mr. Oliveira filed a class action alleging that New Prime denies its drivers lawful wages, New Prime asked the court to invoke its statutory authority under the Federal Arbitration Act to compel arbitration. Mr. Oliveira countered that the court lacked authority because §1 of the Act excepts from coverage disputes involving \"contracts of employment\" of certain transportation workers. New Prime insisted that any question regarding §1’s applicability belonged to the arbitrator alone to resolve, or, assuming the court could address the question, that \"contracts of employment\" referred only to contracts that establish an employer-employee relationship and not to contracts with independent contractors. The District Court and First Circuit agreed with Mr. Oliveira. Held: 1. A court should determine whether a §1 exclusion applies before ordering arbitration. A court’s authority to compel arbitration under the Act does not extend to all private contracts, no matter how emphatically they may express a preference for arbitration. Instead, antecedent statutory provisions limit the scope of a court’s §§3 and 4 powers to stay litigation and compel arbitration \"accord[ing to] the terms\" of the parties’ agreement. Section 2 provides that the Act applies only when the agreement is set forth as \"a written provision in any maritime transaction or a contract evidencing a transaction involving commerce.\" And §1 helps define §2’s terms, warning, as relevant here, that \"nothing\" in the Act \"shall apply\" to \"contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.\" For a court to invoke its statutory authority under §§3 and 4, it must first know if the parties’ agreement is excluded from the Act’s coverage by the terms of §§1 and 2. This sequencing is significant. See, e.g., Bernhardt v. Polygraphic Co. of America, 350 U. S. 198, 201–202. New Prime notes that the parties’ contract contains a \"delegation clause,\" giving the arbitrator authority to decide threshold questions of arbitrability, and that the \"severability principle\" requires that both sides take all their disputes to arbitration. But a delegation clause is merely a specialized type of arbitration agreement and is enforceable under §§3 and 4 only if it appears in a contract consistent with §2 that does not trigger §1’s exception. And, the Act’s severability principle applies only if the parties’ arbitration agreement appears in a contract that falls within the field §§1 and 2 describe. Pp. 3–6. 2. Because the Act’s term \"contract of employment\" refers to any agreement to perform work, Mr. Oliveira’s agreement with New Prime falls within §1’s exception. Pp. 6–15. (a) \"[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’ \" Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (quoting Perrin v. United States, 444 U. S. 37, 42). After all, if judges could freely invest old statutory terms with new meanings, this Court would risk amending legislation outside the \"single, finely wrought and exhaustively considered, procedure\" the Constitution commands. INS v. Chadha, 462 U. S. 919, 951. The Court would risk, too, upsetting reliance interests by subjecting people today to different rules than they enjoyed when the statute was passed. At the time of the Act’s adoption in 1925, the phrase \"contract of employment\" was not a term of art, and dictionaries tended to treat \"employment\" more or less as a synonym for \"work.\" Contemporaneous legal authorities provide no evidence that a \"contract of employment\" necessarily signaled a formal employer-employee relationship. Evidence that Congress used the term \"contracts of employment\" broadly can be found in its choice of the neighboring term \"workers,\" a term that easily embraces independent contractors. Pp. 6–10. (b) New Prime argues that by 1925, the words \"employee\" and \"independent contractor\" had already assumed distinct meanings. But while the words \"employee\" and \"employment\" may share a common root and intertwined history, they also developed at different times and in at least some different ways. The evidence remains that, as dominantly understood in 1925, a \"contract of employment\" did not necessarily imply the existence of an employer-employee relationship. New Prime’s argument that early 20th-century courts sometimes used the phrase \"contracts of employment\" to describe what are recognized today as agreements between employers and employees does nothing to negate the possibility that the term also embraced agreements by independent contractors to perform work. And its effort to explain away the statute’s suggestive use of the term \"worker\" by noting that the neighboring terms \"seamen\" and \"railroad employees\" included only employees in 1925 rests on a precarious premise. The evidence suggests that even \"seamen\" and \"railroad employees\" could be independent contractors at the time the Arbitration Act passed. Left to appeal to the Act’s policy, New Prime suggests that this Court order arbitration to abide Congress’ effort to counteract judicial hostility to arbitration and establish a favorable federal policy toward arbitration agreements. Courts, however, are not free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal. Rather, the Court should respect \"the limits up to which Congress was prepared\" to go when adopting the Arbitration Act. United States v. Sisson, 399 U. S. 267, 298. This Court also declines to address New Prime’s suggestion that it order arbitration anyway under its inherent authority to stay litigation in favor of an alternative dispute resolution mechanism of the parties’ choosing. Pp. 10–15. 857 F. 3d 7, affirmed.", "opinion": "The Federal Arbitration Act requires courts to enforce private arbitration agreements. But like most laws, this one bears its qualifications. Among other things, §1 says that \"nothing herein\" may be used to compel arbitration in disputes involving the \"contracts of employment\" of certain transportation workers. 9 U. S. C. §1. And that qualification has sparked these questions: When a contract delegates questions of arbitrability to an arbitrator, must a court leave disputes over the application of §1’s exception for the arbitrator to resolve? And does the term \"contracts of employment\" refer only to contracts between employers and employees, or does it also reach contracts with independent contractors? Because courts across the country have disagreed on the answers to these questions, we took this case to resolve them. I New Prime is an interstate trucking company and Dominic Oliveira works as one of its drivers. But, at least on paper, Mr. Oliveira isn’t an employee; the parties’ contracts label him an independent contractor. Those agreements also instruct that any disputes arising out of the parties’ relationship should be resolved by an arbitrator— even disputes over the scope of the arbitrator’s authority. Eventually, of course, a dispute did arise. In a class action lawsuit in federal court, Mr. Oliveira argued that New Prime denies its drivers lawful wages. The company may call its drivers independent contractors. But, Mr. Oliveira alleged, in reality New Prime treats them as employees and fails to pay the statutorily due minimum wage. In response to Mr. Oliveira’s complaint, New Prime asked the court to invoke its statutory authority under the Act and compel arbitration according to the terms found in the parties’ agreements. That request led to more than a little litigation of its own. Even when the parties’ contracts mandate arbitration, Mr. Oliveira observed, the Act doesn’t always authorize a court to enter an order compelling it. In particular, §1 carves out from the Act’s coverage \"contracts of employment of . . . workers engaged in foreign or interstate commerce.\" And at least for purposes of this collateral dispute, Mr. Oliveira submitted, it doesn’t matter whether you view him as an employee or independent contractor. Either way, his agreement to drive trucks for New Prime qualifies as a \"contract[ ] of employment of . . . [a] worker[] engaged in . . . interstate commerce.\" Accordingly, Mr. Oliveira argued, the Act supplied the district court with no authority to compel arbitration in this case. Naturally, New Prime disagreed. Given the extraordinary breadth of the parties’ arbitration agreement, the company insisted that any question about §1’s application belonged for the arbitrator alone to resolve. Alternatively and assuming a court could address the question, New Prime contended that the term \"contracts of employment\" refers only to contracts that establish an employer-employee relationship. And because Mr. Oliveira is, in fact as well as form, an independent contractor, the company argued, §1’s exception doesn’t apply; the rest of the statute does; and the district court was (once again) required to order arbitration. Ultimately, the district court and the First Circuit sided with Mr. Oliveira. 857 F. 3d 7 (2017). The court of appeals held, first, that in disputes like this a court should resolve whether the parties’ contract falls within the Act’s ambit or §1’s exclusion before invoking the statute’s authority to order arbitration. Second, the court of appeals held that §1’s exclusion of certain \"contracts of employment\" removes from the Act’s coverage not only employer-employee contracts but also contracts involving independent contractors. So under any account of the parties’ agreement in this case, the court held, it lacked authority under the Act to order arbitration. II In approaching the first question for ourselves, one thing becomes clear immediately. While a court’s authority under the Arbitration Act to compel arbitration may be considerable, it isn’t unconditional. If two parties agree to arbitrate future disputes between them and one side later seeks to evade the deal, §§3 and 4 of the Act often require a court to stay litigation and compel arbitration \"accord[ing to] the terms\" of the parties’ agreement. But this authority doesn’t extend to all private contracts, no matter how emphatically they may express a preference for arbitration. Instead, antecedent statutory provisions limit the scope of the court’s powers under §§3 and 4. Section 2 provides that the Act applies only when the parties’ agreement to arbitrate is set forth as a \"written provision in any maritime transaction or a contract evidencing a transaction involving commerce.\" And §1 helps define §2’s terms. Most relevant for our purposes, §1 warns that \"nothing\" in the Act \"shall apply\" to \"contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.\" Why this very particular qualification? By the time it adopted the Arbitration Act in 1925, Congress had already prescribed alternative employment dispute resolution regimes for many transportation workers. And it seems Congress \"did not wish to unsettle\" those arrangements in favor of whatever arbitration procedures the parties’ private contracts might happen to contemplate. Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 121 (2001). Given the statute’s terms and sequencing, we agree with the First Circuit that a court should decide for itself whether §1’s \"contracts of employment\" exclusion applies before ordering arbitration. After all, to invoke its statutory powers under §§3 and 4 to stay litigation and compel arbitration according to a contract’s terms, a court must first know whether the contract itself falls within or beyond the boundaries of §§1 and 2. The parties’ private agreement may be crystal clear and require arbitration of every question under the sun, but that does not necessarily mean the Act authorizes a court to stay litigation and send the parties to an arbitral forum. Nothing in our holding on this score should come as a surprise. We’ve long stressed the significance of the statute’s sequencing. In Bernhardt v. Polygraphic Co. of America, 350 U. S. 198, 201–202 (1956), we recognized that \"Sections 1, 2, and 3 [and 4] are integral parts of a whole. . . . [Sections] 1 and 2 define the field in which Congress was legislating,\" and §§3 and 4 apply only to contracts covered by those provisions. In Circuit City, we acknowledged that \"Section 1 exempts from the [Act] . . . contracts of employment of transportation workers.\" 532 U. S., at 119. And in Southland Corp. v. Keating, 465 U. S. 1, 10–11, and n. 5 (1984), we noted that \"the enforceability of arbitration provisions\" under §§3 and 4 depends on whether those provisions are \"part of a written maritime contract or a contract ‘evidencing a transaction involving commerce’\" under §2—which, in turn, depends on the application of §1’s exception for certain \"contracts of employment.\" To be sure, New Prime resists this straightforward understanding. The company argues that an arbitrator should resolve any dispute over §1’s application because of the \"delegation clause\" in the parties’ contract and what is sometimes called the \"severability principle.\" A delegation clause gives an arbitrator authority to decide even the initial question whether the parties’ dispute is subject to arbitration. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 68–69 (2010). And under the severability principle, we treat a challenge to the validity of an arbitration agreement (or a delegation clause) separately from a challenge to the validity of the entire contract in which it appears. Id., at 70–71. Unless a party specifically challenges the validity of the agreement to arbitrate, both sides may be required to take all their disputes—including disputes about the validity of their broader contract—to arbitration. Ibid. Applying these principles to this case, New Prime notes that Mr. Oliveira has not specifically challenged the parties’ delegation clause and submits that any controversy should therefore proceed only and immediately before an arbitrator. But all this overlooks the necessarily antecedent statutory inquiry we’ve just discussed. A delegation clause is merely a specialized type of arbitration agreement, and the Act \"operates on this additional arbitration agreement just as it does on any other.\" Id., at 70. So a court may use §§3 and 4 to enforce a delegation clause only if the clause appears in a \"written provision in . . . a contract evidencing a transaction involving commerce\" consistent with §2. And only if the contract in which the clause appears doesn’t trigger §1’s \"contracts of employment\" exception. In exactly the same way, the Act’s severability principle applies only if the parties’ arbitration agreement appears in a contract that falls within the field §§1 and 2 describe. We acknowledged as much some time ago, explaining that, before invoking the severability principle, a court should \"determine[] that the contract in question is within the coverage of the Arbitration Act.\" Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 402 (1967). III That takes us to the second question: Did the First Circuit correctly resolve the merits of the §1 challenge in this case? Recall that §1 excludes from the Act’s compass \"contracts of employment of . . . workers engaged in . . . interstate commerce.\" Happily, everyone before us agrees that Mr. Oliveira qualifies as a \"worker[] engaged in . . . interstate commerce.\" For purposes of this appeal, too, Mr. Oliveira is willing to assume (but not grant) that his contracts with New Prime establish only an independent contractor relationship. With that, the disputed question comes into clear view: What does the term \"contracts of employment\" mean? If it refers only to contracts that reflect an employer-employee relationship, then §1’s exception is irrelevant and a court is free to order arbitration, just as New Prime urges. But if the term also encompasses contracts that require an independent contractor to perform work, then the exception takes hold and a court lacks authority under the Act to order arbitration, exactly as Mr. Oliveira argues. A In taking up this question, we bear an important caution in mind. \"[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’\" Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (2018) (slip op., at 9) (quoting Perrin v. United States, 444 U. S. 37, 42 (1979)). See also Sandifer v. United States Steel Corp., 571 U. S. 220, 227 (2014). After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the \"single, finely wrought and exhaustively considered, procedure\" the Constitution commands. INS v. Chadha, 462 U. S. 919, 951 (1983). We would risk, too, upsetting reliance interests in the settled meaning of a statute. Cf. 2B N. Singer & J. Singer, Sutherland on Statutes and Statutory Construction §56A:3 (rev. 7th ed. 2012). Of course, statutes may sometimes refer to an external source of law and fairly warn readers that they must abide that external source of law, later amendments and modifications included. Id., §51:8 (discussing the reference canon). But nothing like that exists here. Nor has anyone suggested any other appropriate reason that might allow us to depart from the original meaning of the statute at hand. That, we think, holds the key to the case. To many lawyerly ears today, the term \"contracts of employment\" might call to mind only agreements between employers and employees (or what the common law sometimes called masters and servants). Suggestively, at least one recently published law dictionary defines the word \"employment\" to mean \"the relationship between master and servant.\" Black’s Law Dictionary 641 (10th ed. 2014). But this modern intuition isn’t easily squared with evidence of the term’s meaning at the time of the Act’s adoption in 1925. At that time, a \"contract of employment\" usually meant nothing more than an agreement to perform work. As a result, most people then would have understood §1 to exclude not only agreements between employers and employees but also agreements that require independent contractors to perform work. What’s the evidence to support this conclusion? It turns out that in 1925 the term \"contract of employment\" wasn’t defined in any of the (many) popular or legal dictionaries the parties cite to us. And surely that’s a first hint the phrase wasn’t then a term of art bearing some specialized meaning. It turns out, too, that the dictionaries of the era consistently afforded the word \"employment\" a broad construction, broader than may be often found in dictionaries today. Back then, dictionaries tended to treat \"employment\" more or less as a synonym for \"work.\" Nor did they distinguish between different kinds of work or workers: All work was treated as employment, whether or not the common law criteria for a master-servant relationship happened to be satisfied.1 What the dictionaries suggest, legal authorities confirm. This Court’s early 20th-century cases used the phrase \"contract of employment\" to describe work agreements involving independent contractors.2 Many state court cases did the same.3 So did a variety of federal statutes.4 And state statutes too.5 We see here no evidence that a \"contract of employment\" necessarily signaled a formal employer-employee or master-servant relationship. More confirmation yet comes from a neighboring term in the statutory text. Recall that the Act excludes from its coverage \"contracts of employment of . . . any . . . class of workers engaged in foreign or interstate commerce.\" 9 U. S. C. §1 (emphasis added). Notice Congress didn’t use the word \"employees\" or \"servants,\" the natural choices if the term \"contracts of employment\" addressed them alone. Instead, Congress spoke of \"workers,\" a term that everyone agrees easily embraces independent contractors. That word choice may not mean everything, but it does supply further evidence still that Congress used the term \"contracts of employment\" in a broad sense to capture any contract for the performance of work by workers. B What does New Prime have to say about the case building against it? Mainly, it seeks to shift the debate from the term \"contracts of employment\" to the word \"employee.\" Today, the company emphasizes, the law often distinguishes between employees and independent contractors. Employees are generally understood as those who work \"in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance.\" Black’s Law Dictionary, at 639. Meanwhile, independent contractors are sometimes described as those \"entrusted to undertake a specific project but who [are] left free to do the assigned work and to choose the method for accomplishing it.\" Id., at 888. New Prime argues that, by 1925, the words \"employee\" and \"independent contractor\" had already assumed these distinct meanings.6 And given that, the company contends, the phrase \"contracts of employment\" should be understood to refer only to relationships between employers and employees. Unsurprisingly, Mr. Oliveira disagrees. He replies that, while the term \"employment\" dates back many centuries, the word \"employee\" only made its first appearance in English in the 1800s. See Oxford English Dictionary (3d ed., Mar. 2014), www.oed.com/view/Entry/61374 (all Internet materials as last visited Jan. 9, 2019). At that time, the word from which it derived, \"employ,\" simply meant to \"apply (a thing) to some definite purpose.\" 3 J. Murray, A New English Dictionary on Historical Principles 129 (1891). And even in 1910, Black’s Law Dictionary reported that the term \"employee\" had only \"become somewhat naturalized in our language.\" Black’s Law Dictionary 421 (2d ed. 1910). Still, the parties do share some common ground. They agree that the word \"employee\" eventually came into wide circulation and came to denote those who work for a wage at the direction of another. They agree, too, that all this came to pass in part because the word \"employee\" didn’t suffer from the same \"historical baggage\" of the older common law term \"servant,\" and because it proved useful when drafting legislation to regulate burgeoning industries and their labor forces in the early 20th century.7 The parties even agree that the development of the term \"employee\" may have come to influence and narrow our understanding of the word \"employment\" in comparatively recent years and may be why today it might signify to some a \"relationship between master and servant.\" But if the parties’ extended etymological debate persuades us of anything, it is that care is called for. The words \"employee\" and \"employment\" may share a common root and an intertwined history. But they also developed at different times and in at least some different ways. The only question in this case concerns the meaning of the term \"contracts of employment\" in 1925. And, whatever the word \"employee\" may have meant at that time, and however it may have later influenced the meaning of \"employment,\" the evidence before us remains that, as dominantly understood in 1925, a contract of employment did not necessarily imply the existence of an employer-employee or master-servant relationship. When New Prime finally turns its attention to the term in dispute, it directs us to Coppage v. Kansas, 236 U. S. 1, 13 (1915). There and in other cases like it, New Prime notes, courts sometimes used the phrase \"contracts of employment\" to describe what today we’d recognize as agreements between employers and employees. But this proves little. No one doubts that employer-employee agreements to perform work qualified as \"contracts of employment\" in 1925—and documenting that fact does nothing to negate the possibility that \"contracts of employment\" also embraced agreements by independent contractors to perform work. Coming a bit closer to the mark, New Prime eventually cites a handful of early 20th-century legal materials that seem to use the term \"contracts of employment\" to refer exclusively to employer-employee agreements.9 But from the record amassed before us, these authorities appear to represent at most the vanguard, not the main body, of contemporaneous usage. New Prime’s effort to explain away the statute’s suggestive use of the term \"worker\" proves no more compelling. The company reminds us that the statute excludes \"contracts of employment\" for \"seamen\" and \"railroad employees\" as well as other transportation workers. And because \"seamen\" and \"railroad employees\" included only employees in 1925, the company reasons, we should understand \"any other class of workers engaged in . . . interstate commerce\" to bear a similar construction. But this argument rests on a precarious premise. At the time of the Act’s passage, shipboard surgeons who tended injured sailors were considered \"seamen\" though they likely served in an independent contractor capacity.10 Even the term \"railroad employees\" may have swept more broadly at the time of the Act’s passage than might seem obvious today. In 1922, for example, the Railroad Labor Board interpreted the word \"employee\" in the Transportation Act of 1920 to refer to anyone \"engaged in the customary work directly contributory to the operation of the railroads.\"11 And the Erdman Act, a statute enacted to address disruptive railroad strikes at the end of the 19th century, seems to evince an equally broad understanding of \"railroad employees.\"12 Unable to squeeze more from the statute’s text, New Prime is left to appeal to its policy. This Court has said that Congress adopted the Arbitration Act in an effort to counteract judicial hostility to arbitration and establish \"a liberal federal policy favoring arbitration agreements.\" Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983). To abide that policy, New Prime suggests, we must order arbitration according to the terms of the parties’ agreement. But often and by design it is \"hard-fought compromise[],\" not cold logic, that supplies the solvent needed for a bill to survive the legislative process. Board of Governors, FRS v. Dimension Financial Corp., 474 U. S. 361, 374 (1986). If courts felt free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal, we would risk failing to \"tak[e] . . . account of \" legislative compromises essential to a law’s passage and, in that way, thwart rather than honor \"the effectuation of congressional intent.\" Ibid. By respecting the qualifications of §1 today, we \"respect the limits up to which Congress was prepared\" to go when adopting the Arbitration Act. United States v. Sisson, 399 U. S. 267, 298 (1970). Finally, and stretching in a different direction entirely, New Prime invites us to look beyond the Act. Even if the statute doesn’t supply judges with the power to compel arbitration in this case, the company says we should order it anyway because courts always enjoy the inherent authority to stay litigation in favor of an alternative dispute resolution mechanism of the parties’ choosing. That, though, is an argument we decline to tangle with. The courts below did not address it and we granted certiorari only to resolve existing confusion about the application of the Arbitration Act, not to explore other potential avenues for reaching a destination it does not. * When Congress enacted the Arbitration Act in 1925, the term \"contracts of employment\" referred to agreements to perform work. No less than those who came before him, Mr. Oliveira is entitled to the benefit of that same understanding today. Accordingly, his agreement with New Prime falls within §1’s exception, the court of appeals was correct that it lacked authority under the Act to order arbitration, and the judgment is affirmed."},
{"docket_number": "16-1466", "syllabus": "Illinois law permits public employees to unionize. If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees, even those who do not join. Only the union may engage in collective bargaining; individual employees may not be represented by another agent or negotiate directly with their employer. Nonmembers are required to pay what is generally called an \"agency fee,\" i.e., a percentage of the full union dues. Under Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235–236, this fee may cover union expenditures attributable to those activities \"germane\" to the union’s collective-bargaining activities (chargeable expenditures), but may not cover the union’s political and ideological projects (nonchargeable expenditures). The union sets the agency fee annually and then sends nonmembers a notice explaining the basis for the fee and the breakdown of expenditures. Here it was 78.06% of full union dues. Petitioner Mark Janus is a state employee whose unit is represented by a public-sector union (Union), one of the respondents. He refused to join the Union because he opposes many of its positions, including those taken in collective bargaining. Illinois’ Governor, similarly opposed to many of these positions, filed suit challenging the constitutionality of the state law authorizing agency fees. The state attorney general, another respondent, intervened to defend the law, while Janus moved to intervene on the Governor’s side. The District Court dismissed the Governor’s challenge for lack of standing, but it simultaneously allowed Janus to file his own complaint challenging the constitutionality of agency fees. The District Court granted respondents’ motion to dismiss on the ground that the claim was foreclosed by Abood. The Seventh Circuit affirmed. Held: 1. The District Court had jurisdiction over petitioner’s suit. Petitioner was undisputedly injured in fact by Illinois’ agency-fee scheme and his injuries can be redressed by a favorable court decision. For jurisdictional purposes, the court permissibly treated his amended complaint in intervention as the operative complaint in a new lawsuit. United States ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157, distinguished. Pp. 6–7. 2. The State’s extraction of agency fees from nonconsenting public-sector employees violates the First Amendment. Abood erred in concluding otherwise, and stare decisis cannot support it. Abood is therefore overruled. Pp. 7–47. (a) Abood’s holding is inconsistent with standard First Amendment principles. Pp. 7–18. (1) Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns. E.g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 633. That includes compelling a person to subsidize the speech of other private speakers. E.g., Knox v. Service Employees, 567 U. S. 298, 309. In Knox and Harris v. Quinn, 573 U. S. ___, the Court applied an \"exacting\" scrutiny standard in judging the constitutionality of agency fees rather than the more traditional strict scrutiny. Even under the more permissive standard, Illinois’ scheme cannot survive. Pp. 7–11. (2) Neither of Abood’s two justifications for agency fees passes muster under this standard. First, agency fees cannot be upheld on the ground that they promote an interest in \"labor peace.\" The Abood Court’s fears of conflict and disruption if employees were represented by more than one union have proved to be unfounded: Exclusive representation of all the employees in a unit and the exaction of agency fees are not inextricably linked. To the contrary, in the Federal Government and the 28 States with laws prohibiting agency fees, millions of public employees are represented by unions that effectively serve as the exclusive representatives of all the employees. Whatever may have been the case 41 years ago when Abood was decided, it is thus now undeniable that \"labor peace\" can readily be achieved through less restrictive means than the assessment of agency fees. Second, avoiding \"the risk of ‘free riders,’ \" Abood, supra, at 224, is not a compelling state interest. Free-rider \"arguments . . . are generally insufficient to overcome First Amendment objections,\" Knox, supra, at 311, and the statutory requirement that unions represent members and nonmembers alike does not justify different treatment. As is evident in non-agency-fee jurisdictions, unions are quite willing to represent nonmembers in the absence of agency fees. And their duty of fair representation is a necessary concomitant of the authority that a union seeks when it chooses to be the exclusive representative. In any event, States can avoid free riders through less restrictive means than the imposition of agency fees. Pp. 11–18. (b) Respondents’ alternative justifications for Abood are similarly unavailing. Pp. 18–26. (1) The Union claims that Abood is supported by the First Amendment’s original meaning. But neither founding-era evidence nor dictum in Connick v. Myers, 461 U. S. 138, 143, supports the view that the First Amendment was originally understood to allow States to force public employees to subsidize a private third party. If anything, the opposite is true. Pp. 18–22. (2) Nor does Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, provide a basis for Abood. Abood was not based on Pickering, and for good reasons. First, Pickering’s framework was developed for use in cases involving \"one employee’s speech and its impact on that employee’s public responsibilities,\" United States v. Treasury Employees, 513 U. S. 454, 467, while Abood and other agency-fee cases involve a blanket requirement that all employees subsidize private speech with which they may not agree. Second, Pickering’s framework was designed to determine whether a public employee’s speech interferes with the effective operation of a government office, not what happens when the government compels speech or speech subsidies in support of third parties. Third, the categorization schemes of Pickering and Abood do not line up. For example, under Abood, nonmembers cannot be charged for speech that concerns political or ideological issues; but under Pickering, an employee’s free speech interests on such issues could be overcome if outweighed by the employer’s interests. Pp. 22–26. (c) Even under some form of Pickering, Illinois’ agency-fee arrangement would not survive. Pp. 26–33. (1) Respondents compare union speech in collective bargaining and grievance proceedings to speech \"pursuant to [an employee’s] official duties,\" Garcetti v. Ceballos, 547 U. S. 410, 421, which the State may require of its employees. But in those situations, the employee’s words are really the words of the employer, whereas here the union is speaking on behalf of the employees. Garcetti therefore does not apply. Pp. 26–27. (2) Nor does the union speech at issue cover only matters of private concern, which the State may also generally regulate under Pickering. To the contrary, union speech covers critically important and public matters such as the State’s budget crisis, taxes, and collective bargaining issues related to education, child welfare, healthcare, and minority rights. Pp. 27–31. (3) The government’s proffered interests must therefore justify the heavy burden of agency fees on nonmembers’ First Amendment interests. They do not. The state interests asserted in Abood— promoting \"labor peace\" and avoiding free riders—clearly do not, as explained earlier. And the new interests asserted in Harris and here—bargaining with an adequately funded agent and improving the efficiency of the work force—do not suffice either. Experience shows that unions can be effective even without agency fees. Pp. 31– 33. (d) Stare decisis does not require retention of Abood. An analysis of several important factors that should be taken into account in deciding whether to overrule a past decision supports this conclusion. Pp. 33–47. (1) Abood was poorly reasoned, and those arguing for retaining it have recast its reasoning, which further undermines its stare decisis effect, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. 310, 363. Abood relied on Railway Employes v. Hanson, 351 U. S. 225, and Machinists v. Street, 367 U. S. 740, both of which involved private-sector collective-bargaining agreements where the government merely authorized agency fees. Abood did not appreciate the very different First Amendment question that arises when a State requires its employees to pay agency fees. Abood also judged the constitutionality of public-sector agency fees using Hanson’s deferential standard, which is inappropriate in deciding free speech issues. Nor did Abood take into account the difference between the effects of agency fees in public- and private-sector collective bargaining, anticipate administrative problems with classifying union expenses as chargeable or nonchargeable, foresee practical problems faced by nonmembers wishing to challenge those decisions, or understand the inherently political nature of public-sector bargaining. Pp. 35–38. (2) Abood’s lack of workability also weighs against it. Its line between chargeable and nonchargeable expenditures has proved to be impossible to draw with precision, as even respondents recognize. See, e.g., Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 519. What is more, a nonmember objecting to union chargeability determinations will have much trouble determining the accuracy of the union’s reported expenditures, which are often expressed in extremely broad and vague terms. Pp. 38–41. (3) Developments since Abood, both factual and legal, have \"eroded\" the decision’s \"underpinnings\" and left it an outlier among the Court’s First Amendment cases. United States v. Gaudin, 515 U. S. 506, 521. Abood relied on an assumption that \"the principle of exclusive representation in the public sector is dependent on a union or agency shop,\" Harris, 573 U. S., at ___–___, but experience has shown otherwise. It was also decided when public-sector unionism was a relatively new phenomenon. Today, however, public-sector union membership has surpassed that in the private sector, and that ascendency corresponds with a parallel increase in public spending. Abood is also an anomaly in the Court’s First Amendment jurisprudence, where exacting scrutiny, if not a more demanding standard, generally applies. Overruling Abood will also end the oddity of allowing public employers to compel union support (which is not supported by any tradition) but not to compel party support (which is supported by tradition), see, e.g., Elrod v. Burns, 427 U. S. 347. Pp. 42–44. (4) Reliance on Abood does not carry decisive weight. The uncertain status of Abood, known to unions for years; the lack of clarity it provides; the short-term nature of collective-bargaining agreements; and the ability of unions to protect themselves if an agency-fee provision was crucial to its bargain undermine the force of reliance. Pp. 44–47. 3. For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. Pp. 48–49. 851 F. 3d 746, reversed and remanded.", "opinion": "Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern. We upheld a similar law in Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled. I A Under the Illinois Public Labor Relations Act (IPLRA), employees of the State and its political subdivisions are permitted to unionize. See Ill. Comp. Stat., ch. 5, §315/6(a) (West 2016). If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees. §§315/3(s)(1), 315/6(c), 315/9. Employees in the unit are not obligated to join the union selected by their co-workers, but whether they join or not, that union is deemed to be their sole permitted representative. See §§315/6(a), (c). Once a union is so designated, it is vested with broad authority. Only the union may negotiate with the employer on matters relating to \"pay, wages, hours[,] and other conditions of employment.\" §315/6(c). And this authority extends to the negotiation of what the IPLRA calls \"policy matters,\" such as merit pay, the size of the work force, layoffs, privatization, promotion methods, and nondiscrimination policies. §315/4; see §315/6(c); see generally, e.g., Illinois Dept. of Central Management Servs. v. AFSCME, Council 31, No. S–CB–16–17 etc., 33 PERI ¶67 (ILRB Dec. 13, 2016) (Board Decision). Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union; nor may individual employees negotiate directly with their employer. §§315/6(c)–(d), 315/10(a)(4); see Matthews v. Chicago Transit Authority, 2016 IL 117638, 51 N. E. 3d 753, 782; accord, Medo Photo Supply Corp. v. NLRB, 321 U. S. 678, 683–684 (1944). Protection of the employees’ interests is placed in the hands of the union, and therefore the union is required by law to provide fair representation for all employees in the unit, members and nonmembers alike. §315/6(d). Employees who decline to join the union are not assessed full union dues but must instead pay what is generally called an \"agency fee,\" which amounts to a percentage of the union dues. Under Abood, nonmembers may be charged for the portion of union dues attributable to activities that are \"germane to [the union’s] duties as collective-bargaining representative,\" but nonmembers may not be required to fund the union’s political and ideological projects. 431 U. S., at 235; see id., at 235–236. In labor-law parlance, the outlays in the first category are known as \"chargeable\" expenditures, while those in the latter are labeled \"nonchargeable.\" Illinois law does not specify in detail which expenditures are chargeable and which are not. The IPLRA provides that an agency fee may compensate a union for the costs incurred in \"the collective bargaining process, contract administration[,] and pursuing matters affecting wages, hours[,] and conditions of employment.\" §315/6(e); see also §315/3(g). Excluded from the agency-fee calculation are union expenditures \"related to the election or support of any candidate for political office.\" §315/3(g); see §315/6(e). Applying this standard, a union categorizes its expenditures as chargeable or nonchargeable and thus determines a nonmember’s \"proportionate share,\" §315/6(e); this determination is then audited; the amount of the \"proportionate share\" is certified to the employer; and the employer automatically deducts that amount from the nonmembers’ wages. See ibid.; App. to Pet. for Cert. 37a; see also Harris v. Quinn, 573 U. S. ___, ___–___ (2014) (slip op., at 19–20) (describing this process). Nonmembers need not be asked, and they are not required to consent before the fees are deducted. After the amount of the agency fee is fixed each year, the union must send nonmembers what is known as a Hudson notice. See Teachers v. Hudson, 475 U. S. 292 (1986). This notice is supposed to provide nonmembers with \"an adequate explanation of the basis for the [agency] fee.\" Id., at 310. If nonmembers \"suspect that a union has improperly put certain expenses in the [chargeable] category,\" they may challenge that determination. Harris, supra, at ___ (slip op., at 19). As illustrated by the record in this case, unions charge nonmembers, not just for the cost of collective bargaining per se, but also for many other supposedly connected activities. See App. to Pet. for Cert. 28a–39a. Here, the nonmembers were told that they had to pay for \"[l]obbying,\" \"[s]ocial and recreational activities,\" \"advertising,\" \"[m]embership meetings and conventions,\" and \"litigation,\" as well as other unspecified \"[s]ervices\" that \"may ultimately inure to the benefit of the members of the local bargaining unit.\" Id., at 28a–32a. The total chargeable amount for nonmembers was 78.06% of full union dues. Id., at 34a. B Petitioner Mark Janus is employed by the Illinois Department of Healthcare and Family Services as a child support specialist. Id., at 10a. The employees in his unit are among the 35,000 public employees in Illinois who are represented by respondent American Federation of State, County, and Municipal Employees, Council 31 (Union). Ibid. Janus refused to join the Union because he opposes \"many of the public policy positions that [it] advocates,\" including the positions it takes in collective bargaining. Id., at 10a, 18a. Janus believes that the Union’s \"behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens.\" Id., at 18a. Therefore, if he had the choice, he \"would not pay any fees or otherwise subsidize [the Union].\" Ibid. Under his unit’s collective-bargaining agreement, however, he was required to pay an agency fee of $44.58 per month, id., at 14a—which would amount to about $535 per year. Janus’s concern about Illinois’ current financial situation is shared by the Governor of the State, and it was the Governor who initially challenged the statute authorizing the imposition of agency fees. The Governor commenced an action in federal court, asking that the law be declared unconstitutional, and the Illinois attorney general (a respondent here) intervened to defend the law. App. 41. Janus and two other state employees also moved to intervene—but on the Governor’s side. Id., at 60. Respondents moved to dismiss the Governor’s challenge for lack of standing, contending that the agency fees did not cause him any personal injury. E.g., id., at 48–49. The District Court agreed that the Governor could not maintain the lawsuit, but it held that petitioner and the other individuals who had moved to intervene had standing because the agency fees unquestionably injured them. Accordingly, \"in the interest of judicial economy,\" the court dismissed the Governor as a plaintiff, while simultaneously allowing petitioner and the other employees to file their own complaint. Id., at 112. They did so, and the case proceeded on the basis of this new complaint. The amended complaint claims that all \"nonmember fee deductions are coerced political speech\" and that \"the First Amendment forbids coercing any money from the nonmembers.\" App. to Pet. for Cert. 23a. Respondents moved to dismiss the amended complaint, correctly recognizing that the claim it asserted was foreclosed by Abood. The District Court granted the motion, id., at 7a, and the Court of Appeals for the Seventh Circuit affirmed, 851 F. 3d 746 (2017). Janus then sought review in this Court, asking us to overrule Abood and hold that public-sector agency-fee arrangements are unconstitutional. We granted certiorari to consider this important question. 582 U. S. ___ (2017). II Before reaching this question, however, we must consider a threshold issue. Respondents contend that the District Court lacked jurisdiction under Article III of the Constitution because petitioner \"moved to intervene in [the Governor’s] jurisdictionally defective lawsuit.\" Union Brief in Opposition 11; see also id., at 13–17; State Brief in Opposition 6; Brief for Union Respondent i, 16–17; Brief for State Respondents 14, n. 1. This argument is clearly wrong. It rests on the faulty premise that petitioner intervened in the action brought by the Governor, but that is not what happened. The District Court did not grant petitioner’s motion to intervene in that lawsuit. Instead, the court essentially treated petitioner’s amended complaint as the operative complaint in a new lawsuit. App. 110–112. And when the case is viewed in that way, any Article III issue vanishes. As the District Court recognized—and as respondents concede—petitioner was injured in fact by Illinois’ agency-fee scheme, and his injuries can be redressed by a favorable court decision. Ibid.; see Record 2312–2313, 2322–2323. Therefore, he clearly has Article III standing. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992). It is true that the District Court docketed petitioner’s complaint under the number originally assigned to the Governor’s complaint, instead of giving it a new number of its own. But Article III jurisdiction does not turn on such trivialities. The sole decision on which respondents rely, United States ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157 (1914), actually works against them. That case concerned a statute permitting creditors of a government contractor to bring suit on a bond between 6 and 12 months after the completion of the work. Id., at 162. One creditor filed suit before the 6-month starting date, but another intervened within the 6-to-12-month window. The Court held that the \"[t]he intervention [did] not cure th[e] vice in the original [prematurely filed] suit,\" but the Court also contemplated treating \"intervention . . . as an original suit\" in a case in which the intervenor met the requirements that a plaintiff must satisfy—e.g., filing a separate complaint and properly serving the defendants. Id., at 163–164. Because that is what petitioner did here, we may reach the merits of the question presented. III In Abood, the Court upheld the constitutionality of an agency-shop arrangement like the one now before us, 431 U. S., at 232, but in more recent cases we have recognized that this holding is \"something of an anomaly,\" Knox v. Service Employees, 567 U. S. 298, 311 (2012), and that Abood’s \"analysis is questionable on several grounds,\" Harris, 573 U. S., at ___ (slip op., at 17); see id., at ___–___ (slip op., at 17–20) (discussing flaws in Abood’s reasoning). We have therefore refused to extend Abood to situations where it does not squarely control, see Harris, supra, at ___–___ (slip op., at 27–29), while leaving for another day the question whether Abood should be overruled, Harris, supra, at ___, n. 19 (slip op., at 27, n. 19); see Knox, supra, at 310–311. We now address that question. We first consider whether Abood’s holding is consistent with standard First Amendment principles. A The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech. We have held time and again that freedom of speech \"includes both the right to speak freely and the right to refrain from speaking at all.\" Wooley v. Maynard, 430 U. S. 705, 714 (1977); see Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 796–797 (1988); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 559 (1985); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256–257 (1974); accord, Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 9 (1986) (plurality opinion). The right to eschew association for expressive purposes is likewise protected. Roberts v. United States Jaycees, 468 U. S. 609, 623 (1984) (\"Freedom of association . . . plainly presupposes a freedom not to associate\"); see Pacific Gas & Elec., supra, at 12 (\"[F]orced associations that burden protected speech are impermissible\"). As Justice Jackson memorably put it: \"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.\" West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) (emphasis added). Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this. Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least as threatening. Free speech serves many ends. It is essential to our democratic form of government, see, e.g., Garrison v. Louisiana, 379 U. S. 64, 74–75 (1964), and it furthers the search for truth, see, e.g., Thornhill v. Alabama, 310 U. S. 88, 95 (1940). Whenever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends. When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding \"involuntary affirmation\" of objected-to beliefs would require \"even more immediate and urgent grounds\" than a law demanding silence. Barnette, supra, at 633; see also Riley, supra, at 796–797 (rejecting \"deferential test\" for compelled speech claims). Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. Knox, supra, at 309; United States v. United Foods, Inc., 533 U. S. 405, 410 (2001); Abood, supra, at 222, 234– 235. As Jefferson famously put it, \"to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.\" A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted); see also Hudson, 475 U. S., at 305, n. 15. We have therefore recognized that a \"‘significant impingement on First Amendment rights’\" occurs when public employees are required to provide financial support for a union that \"takes many positions during collective bargaining that have powerful political and civic consequences.\" Knox, supra, at 310–311 (quoting Ellis v. Railway Clerks, 466 U. S. 435, 455 (1984)). Because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed. Our free speech cases have identified \"levels of scrutiny\" to be applied in different contexts, and in three recent cases, we have considered the standard that should be used in judging the constitutionality of agency fees. See Knox, supra; Harris, supra; Friedrichs v. California Teachers Assn., 578 U. S. ___ (2016) (per curiam) (affirming decision below by equally divided Court). In Knox, the first of these cases, we found it sufficient to hold that the conduct in question was unconstitutional under even the test used for the compulsory subsidization of commercial speech. 567 U. S., at 309–310, 321–322. Even though commercial speech has been thought to enjoy a lesser degree of protection, see, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 562–563 (1980), prior precedent in that area, specifically United Foods, supra, had applied what we characterized as \"exacting\" scrutiny, Knox, 567 U. S., at 310, a less demanding test than the \"strict\" scrutiny that might be thought to apply outside the commercial sphere. Under \"exacting\" scrutiny, we noted, a compelled subsidy must \"serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.\" Ibid. (internal quotation marks and alterations omitted). In Harris, the second of these cases, we again found that an agency-fee requirement failed \"exacting scrutiny.\" 573 U. S., at ___ (slip op., at 33). But we questioned whether that test provides sufficient protection for free speech rights, since \"it is apparent that the speech compelled\" in agency-fee cases \"is not commercial speech.\" Id., at ___ (slip op., at 30). Picking up that cue, petitioner in the present case contends that the Illinois law at issue should be subjected to \"strict scrutiny.\" Brief for Petitioner 36. The dissent, on the other hand, proposes that we apply what amounts to rational-basis review, that is, that we ask only whether a government employer could reasonably believe that the exaction of agency fees serves its interests. See post, at 4 (KAGAN, J., dissenting) (\"A government entity could reasonably conclude that such a clause was needed\"). This form of minimal scrutiny is foreign to our free-speech jurisprudence, and we reject it here. At the same time, we again find it unnecessary to decide the issue of strict scrutiny because the Illinois scheme cannot survive under even the more permissive standard applied in Knox and Harris. In the remainder of this part of our opinion (Parts III–B and III–C), we will apply this standard to the justifications for agency fees adopted by the Court in Abood. Then, in Parts IV and V, we will turn to alternative rationales proffered by respondents and their amici. B In Abood, the main defense of the agency-fee arrangement was that it served the State’s interest in \"labor peace,\" 431 U. S., at 224. By \"labor peace,\" the Abood Court meant avoidance of the conflict and disruption that it envisioned would occur if the employees in a unit were represented by more than one union. In such a situation, the Court predicted, \"inter-union rivalries\" would foster \"dissension within the work force,\" and the employer could face \"conflicting demands from different unions.\" Id., at 220–221. Confusion would ensue if the employer entered into and attempted to \"enforce two or more agreements specifying different terms and conditions of employment.\" Id., at 220. And a settlement with one union would be \"subject to attack from [a] rival labor organizatio[n].\" Id., at 221. We assume that \"labor peace,\" in this sense of the term, is a compelling state interest, but Abood cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear that Abood’s fears were unfounded. The Abood Court assumed that designation of a union as the exclusive representative of all the employees in a unit and the exaction of agency fees are inextricably linked, but that is simply not true. Harris, supra, at ___ (slip op., at 31). The federal employment experience is illustrative. Under federal law, a union chosen by majority vote is designated as the exclusive representative of all the employees, but federal law does not permit agency fees. See 5 U. S. C. §§7102, 7111(a), 7114(a). Nevertheless, nearly a million federal employees—about 27% of the federal work force—are union members.1 The situation in the Postal Service is similar. Although permitted to choose an exclusive representative, Postal Service employees are not required to pay an agency fee, 39 U. S. C. §§1203(a), 1209(c), and about 400,000 are union members.2 Likewise, millions of public employees in the 28 States that have laws generally prohibiting agency fees are represented by unions that serve as the exclusive representatives of all the employees.3 Whatever may have been the case 41 years ago when Abood was handed down, it is now undeniable that \"labor peace\" can readily be achieved \"through means significantly less restrictive of associational freedoms\" than the assessment of agency fees. Harris, supra, at ___ (slip op., at 30) (internal quotation marks omitted). C In addition to the promotion of \"labor peace,\" Abood cited \"the risk of ‘free riders’\" as justification for agency fees, 431 U. S., at 224. Respondents and some of their amici endorse this reasoning, contending that agency fees are needed to prevent nonmembers from enjoying the benefits of union representation without shouldering the costs. Brief for Union Respondent 34–36; Brief for State Respondents 41–45; see, e.g., Brief for International Brotherhood of Teamsters as Amicus Curiae 3–5. Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage. Whichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest. As we have noted, \"free-rider arguments . . . are generally insufficient to overcome First Amendment objections.\" Knox, 567 U. S., at 311. To hold otherwise across the board would have startling consequences. Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech? Suppose that a particular group lobbies or speaks out on behalf of what it thinks are the needs of senior citizens or veterans or physicians, to take just a few examples. Could the government require that all seniors, veterans, or doctors pay for that service even if they object? It has never been thought that this is permissible. \"[P]rivate speech often furthers the interests of nonspeakers,\" but \"that does not alone empower the state to compel the speech to be paid for.\" Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 556 (1991) (Scalia, J., concurring in judgment in part and dissenting in part). In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.4 Those supporting agency fees contend that the situation here is different because unions are statutorily required to \"represen[t] the interests of all public employees in the unit,\" whether or not they are union members. §315/6(d); see, e.g., Brief for State Respondents 40–41, 45; post, at 7 (KAGAN, J., dissenting). Why might this matter? We can think of two possible arguments. It might be argued that a State has a compelling interest in requiring the payment of agency fees because (1) unions would otherwise be unwilling to represent nonmembers or (2) it would be fundamentally unfair to require unions to provide fair representation for nonmembers if nonmembers were not required to pay. Neither of these arguments is sound. First, it is simply not true that unions will refuse to serve as the exclusive representative of all employees in the unit if they are not given agency fees. As noted, unions represent millions of public employees in jurisdictions that do not permit agency fees. No union is ever compelled to seek that designation. On the contrary, designation as exclusive representative is avidly sought.5 Why is this so? Even without agency fees, designation as the exclusive representative confers many benefits. As noted, that status gives the union a privileged place in negotiations over wages, benefits, and working conditions. See §315/6(c). Not only is the union given the exclusive right to speak for all the employees in collective bargaining, but the employer is required by state law to listen to and to bargain in good faith with only that union. §315/7. Designation as exclusive representative thus \"results in a tremendous increase in the power\" of the union. American Communications Assn. v. Douds, 339 U. S. 382, 401 (1950). In addition, a union designated as exclusive representative is often granted special privileges, such as obtaining information about employees, see §315/6(c), and having dues and fees deducted directly from employee wages, §§315/6(e)–(f). The collective-bargaining agreement in this case guarantees a long list of additional privileges. See App. 138–143. These benefits greatly outweigh any extra burden imposed by the duty of providing fair representation for nonmembers. What this duty entails, in simple terms, is an obligation not to \"act solely in the interests of [the union’s] own members.\" Brief for State Respondents 41; see Cintron v. AFSCME, Council 31, No. S–CB–16–032, p. 1, 34 PERI ¶105 (ILRB Dec. 13, 2017) (union may not intentionally direct \"animosity\" toward nonmembers based on their \"dissident union practices\"); accord, 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 271 (2009); Vaca v. Sipes, 386 U. S. 171, 177 (1967). What does this mean when it comes to the negotiation of a contract? The union may not negotiate a collective-bargaining agreement that discriminates against non¬ members, see Steele v. Louisville & Nashville R. Co., 323 U. S. 192, 202–203 (1944), but the union’s bargaining latitude would be little different if state law simply prohibited public employers from entering into agreements that discriminate in that way. And for that matter, it is questionable whether the Constitution would permit a public-sector employer to adopt a collective-bargaining agreement that discriminates against nonmembers. See id., at 198–199, 202 (analogizing a private-sector union’s fair-representation duty to the duty \"the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates\"); cf. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 69 (2006) (recognizing that government may not \"impose penalties or withhold benefits based on membership in a disfavored group\" where doing so \"ma[kes] group membership less attractive\"). To the extent that an employer would be barred from acceding to a discriminatory agreement anyway, the union’s duty not to ask for one is superfluous. It is noteworthy that neither respondents nor any of the 39 amicus briefs supporting them—nor the dissent—has explained why the duty of fair representation causes public-sector unions to incur significantly greater expenses than they would otherwise bear in negotiating collective-bargaining agreements. What about the representation of nonmembers in grievance proceedings? Unions do not undertake this activity solely for the benefit of nonmembers—which is why Illinois law gives a public-sector union the right to send a representative to such proceedings even if the employee declines union representation. §315/6(b). Representation of nonmembers furthers the union’s interest in keeping control of the administration of the collective-bargaining agreement, since the resolution of one employee’s grievance can affect others. And when a union controls the grievance process, it may, as a practical matter, effectively subordinate \"the interests of [an] individual employee . . . to the collective interests of all employees in the bargaining unit.\" Alexander v. Gardner-Denver Co., 415 U. S. 36, 58, n. 19 (1974); see Stahulak v. Chicago, 184 Ill. 2d 176, 180–181, 703 N. E. 2d 44, 46–47 (1998); Mahoney v. Chicago, 293 Ill. App. 3d 69, 73–74, 687 N. E. 2d 132, 135–137 (1997) (union has \"‘discretion to refuse to process’\" a grievance, provided it does not act \"arbitrar[ily]\" or \"in bad faith\" (emphasis deleted)). In any event, whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matters can be eliminated \"through means significantly less restrictive of associational freedoms\" than the imposition of agency fees. Harris, 573 U. S., at ___ (slip op., at 30) (internal quotation marks omitted). Individual nonmembers could be required to pay for that service or could be denied union representation altogether.6 Thus, agency fees cannot be sustained on the ground that unions would otherwise be unwilling to represent nonmembers. Nor can such fees be justified on the ground that it would otherwise be unfair to require a union to bear the duty of fair representation. That duty is a necessary concomitant of the authority that a union seeks when it chooses to serve as the exclusive representative of all the employees in a unit. As explained, designating a union as the exclusive representative of nonmembers substantially restricts the nonmembers’ rights. Supra, at 2–3. Protec¬tion of their interests is placed in the hands of the union, and if the union were free to disregard or even work against those interests, these employees would be wholly unprotected. That is why we said many years ago that serious \"constitutional questions [would] arise\" if the union were not subject to the duty to represent all employees fairly. Steele, supra, at 198. In sum, we do not see any reason to treat the free-rider interest any differently in the agency-fee context than in any other First Amendment context. See Knox, 567 U. S., at 311, 321. We therefore hold that agency fees cannot be upheld on free-rider grounds. IV Implicitly acknowledging the weakness of Abood’s own reasoning, proponents of agency fees have come forward with alternative justifications for the decision, and we now address these arguments. A The most surprising of these new arguments is the Union respondent’s originalist defense of Abood. According to this argument, Abood was correctly decided because the First Amendment was not originally understood to provide any protection for the free speech rights of public employees. Brief for Union Respondent 2–3, 17–20. As an initial matter, we doubt that the Union—or its members—actually want us to hold that public employees have \"no [free speech] rights.\" Id., at 1. Cf., e.g., Brief for National Treasury Employees Union as Amicus Curiae in Garcetti v. Ceballos, O. T. 2005, No. 04–473, p. 7 (arguing for \"broa[d]\" public-employee First Amendment rights); Brief for AFL–CIO as Amicus Curiae in No. 04–473 (similar). It is particularly discordant to find this argument in a brief that trumpets the importance of stare decisis. See Brief for Union Respondent 47–57. Taking away free speech protection for public employees would mean overturning decades of landmark precedent. Under the Union’s theory, Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), and its progeny would fall. Yet Pickering, as we will discuss, is now the foundation for respondents’ chief defense of Abood. And indeed, Abood itself would have to go if public employees have no free speech rights, since Abood holds that the First Amendment prohibits the exaction of agency fees for political or ideological purposes. 431 U. S., at 234– 235 (finding it \"clear\" that \"a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment\"). Our political patronage cases would be doomed. See, e.g., Rutan v. Republican Party of Ill., 497 U. S. 62 (1990); Branti v. Finkel, 445 U. S. 507 (1980); Elrod v. Burns, 427 U. S. 347 (1976). Also imperiled would be older precedents like Wieman v. Updegraff, 344 U. S. 183 (1952) (loyalty oaths), Shelton v. Tucker, 364 U. S. 479 (1960) (disclosure of memberships and contributions), and Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967) (subversive speech). Respondents presumably want none of this, desiring instead that we apply the Constitution’s supposed original meaning only when it suits them—to retain the part of Abood that they like. See Tr. of Oral Arg. 56–57. We will not engage in this halfway originalism. Nor, in any event, does the First Amendment’s original meaning support the Union’s claim. The Union offers no persuasive founding-era evidence that public employees were understood to lack free speech protections. While it observes that restrictions on federal employees’ activities have existed since the First Congress, most of its historical examples involved limitations on public officials’ outside business dealings, not on their speech. See Ex parte Curtis, 106 U. S. 371, 372–373 (1882). The only early speech restrictions the Union identifies are an 1806 statute prohibiting military personnel from using \"‘contemptuous or disrespectful words against the President’\" and other officials, and an 1801 directive limiting electioneering by top government employees. Brief for Union Respondent 3. But those examples at most show that the government was understood to have power to limit employee speech that threatened important governmental interests (such as maintaining military discipline and preventing corruption)—not that public employees’ speech was entirely unprotected. Indeed, more recently this Court has upheld similar restrictions even while recognizing that government employees possess First Amendment rights. See, e.g., Brown v. Glines, 444 U. S. 348, 353 (1980) (upholding military restriction on speech that threatened troop readiness); Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 556–557 (1973) (upholding limits on public employees’ political activities). Ultimately, the Union relies, not on founding-era evidence, but on dictum from a 1983 opinion of this Court stating that, \"[f]or most of th[e 20th] century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.\" Connick v. Myers, 461 U. S. 138, 143; see Brief for Union Respondent 2, 17. Even on its own terms, this dictum about 20th-century views does not purport to describe how the First Amendment was understood in 1791. And a careful examination of the decisions by this Court that Connick cited to support its dictum, see 461 U. S., at 144, reveals that none of them rested on the facile premise that public employees are unprotected by the First Amendment. Instead, they considered (much as we do today) whether particular speech restrictions were \"necessary to protect\" fundamental government interests. Curtis, supra, at 374. The Union has also failed to show that, even if public employees enjoyed free speech rights, the First Amendment was nonetheless originally understood to allow forced subsidies like those at issue here. We can safely say that, at the time of the adoption of the First Amendment, no one gave any thought to whether public-sector unions could charge nonmembers agency fees. Entities resembling labor unions did not exist at the founding, and public-sector unions did not emerge until the mid-20th century. The idea of public-sector unionization and agency fees would astound those who framed and ratified the Bill of Rights.7 Thus, the Union cannot point to any accepted founding-era practice that even remotely resembles the compulsory assessment of agency fees from public-sector employees. We do know, however, that prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. As noted, Jefferson denounced compelled support for such beliefs as \"‘sinful and tyrannical,’\" supra, at 9, and others expressed similar views. In short, the Union has offered no basis for concluding that Abood is supported by the original understanding of the First Amendment. B The principal defense of Abood advanced by respondents and the dissent is based on our decision in Pickering, 391 U. S. 563, which held that a school district violated the First Amendment by firing a teacher for writing a letter critical of the school administration. Under Pickering and later cases in the same line, employee speech is largely unprotected if it is part of what the employee is paid to do, see Garcetti v. Ceballos, 547 U. S. 410, 421–422 (2006), or if it involved a matter of only private concern, see Connick, supra, at 146–149. On the other hand, when a public employee speaks as a citizen on a matter of public concern, the employee’s speech is protected unless \"‘the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees’ outweighs ‘the interests of the [employee], as a citizen, in commenting upon matters of public concern.’\" Harris, 573 U. S., at ___ (slip op., at 35) (quoting Pickering, supra, at 568). Pickering was the centerpiece of the defense of Abood in Harris, see 573 U. S., at ___–___ (slip op., at 17– 21) (KAGAN, J., dissenting), and we found the argument unpersuasive, see id., at ___–___ (slip op., at 34–37). The intervening years have not improved its appeal. 1 As we pointed out in Harris, Abood was not based on Pickering. 573 U. S., at ___, and n. 26 (slip op., at 34, and n. 26). The Abood majority cited the case exactly once—in a footnote—and then merely to acknowledge that \"there may be limits on the extent to which an employee in a sensitive or policymaking position may freely criticize his superiors and the policies they espouse.\" 431 U. S., at 230, n. 27. That aside has no bearing on the agency-fee issue here.9 Respondents’ reliance on Pickering is thus \"an effort to find a new justification for the decision in Abood.\" Harris, supra, at ___ (slip op., at 34). And we have previously taken a dim view of similar attempts to recast problematic First Amendment decisions. See, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. 310, 348–349, 363 (2010) (rejecting efforts to recast Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990)); see also Citizens United, supra, at 382–385 (ROBERTS, C. J., concurring). We see no good reason, at this late date, to try to shoehorn Abood into the Pickering framework. 2 Even if that were attempted, the shoe would be a painful fit for at least three reasons. First, the Pickering framework was developed for use in a very different context—in cases that involve \"one employee’s speech and its impact on that employee’s public responsibilities.\" United States v. Treasury Employees, 513 U. S. 454, 467 (1995). This case, by contrast, involves a blanket requirement that all employees subsidize speech with which they may not agree. While we have sometimes looked to Pickering in considering general rules that affect broad categories of employees, we have acknowledged that the standard Pickering analysis requires modification in that situation. See 513 U. S., at 466–468, and n. 11. A speech-restrictive law with \"widespread impact,\" we have said, \"gives rise to far more serious concerns than could any single supervisory decision.\" Id., at 468. Therefore, when such a law is at issue, the government must shoulder a correspondingly \"heav[ier]\" burden, id., at 466, and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights, see id., at 475–476, n. 21; accord, id., at 482–483 (O’Connor, J., concurring in judgment in part and dissenting in part). The end product of those adjustments is a test that more closely resembles exacting scrutiny than the traditional Pickering analysis. The core collective-bargaining issue of wages and benefits illustrates this point. Suppose that a single employee complains that he or she should have received a 5% raise. This individual complaint would likely constitute a matter of only private concern and would therefore be unprotected under Pickering. But a public-sector union’s demand for a 5% raise for the many thousands of employees it represents would be another matter entirely. Granting such a raise could have a serious impact on the budget of the government unit in question, and by the same token, denying a raise might have a significant effect on the performance of government services. When a large number of employees speak through their union, the category of speech that is of public concern is greatly enlarged, and the category of speech that is of only private concern is substantially shrunk. By disputing this, post, at 13–14, the dissent denies the obvious. Second, the Pickering framework fits much less well where the government compels speech or speech subsidies in support of third parties. Pickering is based on the insight that the speech of a public-sector employee may interfere with the effective operation of a government office. When a public employer does not simply restrict potentially disruptive speech but commands that its employees mouth a message on its own behalf, the calculus is very different. Of course, if the speech in question is part of an employee’s official duties, the employer may insist that the employee deliver any lawful message. See Garcetti, 547 U. S., at 421–422, 425–426. Otherwise, however, it is not easy to imagine a situation in which a public employer has a legitimate need to demand that its employees recite words with which they disagree. And we have never applied Pickering in such a case. Consider our decision in Connick. In that case, we held that an assistant district attorney’s complaints about the supervisors in her office were, for the most part, matters of only private concern. 461 U. S., at 148. As a result, we held, the district attorney could fire her for making those comments. Id., at 154. Now, suppose that the assistant had not made any critical comments about the supervisors but that the district attorney, out of the blue, demanded that she circulate a memo praising the supervisors. Would her refusal to go along still be a matter of purely private concern? And if not, would the order be justified on the ground that the effective operation of the office demanded that the assistant voice complimentary sentiments with which she disagreed? If Pickering applies at all to compelled speech—a question that we do not decide—it would certainly require adjustment in that context. Third, although both Pickering and Abood divided speech into two categories, the cases’ categorization schemes do not line up. Superimposing the Pickering scheme on Abood would significantly change the Abood regime. Let us first look at speech that is not germane to collective bargaining but instead concerns political or ideological issues. Under Abood, a public employer is flatly pro¬hibited from permitting nonmembers to be charged for this speech, but under Pickering, the employees’ free speech interests could be overcome if a court found that the employer’s interests outweighed the employees’. A similar problem arises with respect to speech that is germane to collective bargaining. The parties dispute how much of this speech is of public concern, but respondents concede that much of it falls squarely into that category. See Tr. of Oral Arg. 47, 65. Under Abood, nonmembers may be required to pay for all this speech, but Pickering would permit that practice only if the employer’s interests outweighed those of the employees. Thus, recasting Abood as an application of Pickering would substantially alter the Abood scheme. For all these reasons, Pickering is a poor fit indeed. V Even if we were to apply some form of Pickering, Illinois’ agency-fee arrangement would not survive. A Respondents begin by suggesting that union speech in collective-bargaining and grievance proceedings should be treated like the employee speech in Garcetti, i.e., as speech \"pursuant to [an employee’s] official duties,\" 547 U. S., at 421. Many employees, in both the public and private sectors, are paid to write or speak for the purpose of furthering the interests of their employers. There are laws that protect public employees from being compelled to say things that they reasonably believe to be untrue or improper, see id., at 425–426, but in general when public employees are performing their job duties, their speech may be controlled by their employer. Trying to fit union speech into this framework, respondents now suggest that the union speech funded by agency fees forms part of the official duties of the union officers who engage in the speech. Brief for Union Respondent 22–23; see Brief for State Respondents 23–24. This argument distorts collective bargaining and grievance adjustment beyond recognition. When an employee engages in speech that is part of the employee’s job duties, the employee’s words are really the words of the employer. The employee is effectively the employer’s spokesperson. But when a union negotiates with the employer or represents employees in disciplinary proceedings, the union speaks for the employees, not the employer. Otherwise, the employer would be negotiating with itself and disputing its own actions. That is not what anybody understands to be happening. What is more, if the union’s speech is really the employer’s speech, then the employer could dictate what the union says. Unions, we trust, would be appalled by such a suggestion. For these reasons, Garcetti is totally inapposite here. B Since the union speech paid for by agency fees is not controlled by Garcetti, we move on to the next step of the Pickering framework and ask whether the speech is on a matter of public or only private concern. In Harris, the dissent’s central argument in defense of Abood was that union speech in collective bargaining, including speech about wages and benefits, is basically a matter of only private interest. See 573 U. S., at ___–___ (slip op., at 19– 20) (KAGAN, J., dissenting). We squarely rejected that argument, see id., at ___–___ (slip op., at 35–36), and the facts of the present case substantiate what we said at that time: \"[I]t is impossible to argue that the level of . . . state spending for employee benefits . . . is not a matter of great public concern,\" id., at ___ (slip op., at 36). Illinois, like some other States and a number of counties and cities around the country, suffers from severe budget problems.10 As of 2013, Illinois had nearly $160 billion in unfunded pension and retiree healthcare liabilities.11 By 2017, that number had only grown, and the State was grappling with $15 billion in unpaid bills.12 We are told that a \"quarter of the budget is now devoted to paying down\" those liabilities.13 These problems and others led Moody’s and S&P to downgrade Illinois’ credit rating to \"one step above junk\"—the \"lowest ranking on record for a U. S. state.\"14 The Governor, on one side, and public-sector unions, on the other, disagree sharply about what to do about these problems. The State claims that its employment-related debt is \"‘squeezing core programs in education, public safety, and human services, in addition to limiting [the State’s] ability to pay [its] bills.’\" Securities Act of 1933 Release No. 9389, 105 S. E. C. Docket 3381 (2013). It therefore \"told the Union that it would attempt to address th[e financial] crisis, at least in part, through collective bargaining.\" Board Decision 12–13. And \"the State’s desire for savings\" in fact \"dr[o]ve [its] bargaining\" positions on matters such as health-insurance benefits and holiday, overtime, and promotion policies. Id., at 13; Illinois Dept. of Central Management Servs. v. AFSCME, Council 31, No. S–CB–16–17 etc., 33 PERI ¶67 (ILRB Dec. 13, 2016) (ALJ Decision), pp. 26–28, 63–66, 224. But when the State offered cost-saving proposals on these issues, the Union countered with very different suggestions. Among other things, it advocated wage and tax increases, cutting spending \"to Wall Street financial institutions,\" and reforms to Illinois’ pension and tax systems (such as closing \"corporate tax loopholes,\" \"[e]xpanding the base of the state sales tax,\" and \"allowing an income tax that is adjusted in accordance with ability to pay\"). Id., at 27–28. To suggest that speech on such matters is not of great public concern—or that it is not directed at the \"public square,\" post, at 16 (KAGAN, J., dissenting)—is to deny reality. In addition to affecting how public money is spent, union speech in collective bargaining addresses many other important matters. As the examples offered by respondents’ own amici show, unions express views on a wide range of subjects—education, child welfare, healthcare, and minority rights, to name a few. See, e.g., Brief for American Federation of Teachers as Amicus Curiae 15–27; Brief for Child Protective Service Workers et al. as Amici Curiae 5–13; Brief for Human Rights Campaign et al. as Amici Curiae 10–17; Brief for National Women’s Law Center et al. as Amici Curiae 14–30. What unions have to say on these matters in the context of collective bargaining is of great public importance. Take the example of education, which was the focus of briefing and argument in Friedrichs. The public importance of subsidized union speech is especially apparent in this field, since educators make up by far the largest category of state and local government employees, and education is typically the largest component of state and local government expenditures.15 Speech in this area also touches on fundamental questions of education policy. Should teacher pay be based on seniority, the better to retain experienced teachers? Or should schools adopt merit-pay systems to encourage teachers to get the best results out of their students?16 Should districts transfer more experienced teachers to the lower performing schools that may have the greatest need for their skills, or should those teachers be allowed to stay where they have put down roots?17 Should teachers be given tenure protection and, if so, under what conditions? On what grounds and pursuant to what procedures should teachers be subject to discipline or dismissal? How should teacher performance and student progress be measured— by standardized tests or other means? Unions can also speak out in collective bargaining on controversial subjects such as climate change,18 the Confederacy,19 sexual orientation and gender identity,20 evolution,21 and minority religions.22 These are sensitive politi¬cal topics, and they are undoubtedly matters of profound \"‘value and concern to the public.’\" Snyder v. Phelps, 562 U. S. 443, 453 (2011). We have often recognized that such speech \"‘occupies the highest rung of the hierarchy of First Amendment values’\" and merits \"‘special protection.’\" Id., at 452. What does the dissent say about the prevalence of such issues? The most that it is willing to admit is that \"some\" issues that arise in collective bargaining \"raise important non-budgetary disputes.\" Post, at 17. Here again, the dissent refuses to recognize what actually occurs in public-sector collective bargaining. Even union speech in the handling of grievances may be of substantial public importance and may be directed at the \"public square.\" Post, at 16. For instance, the Union respondent in this case recently filed a grievance seeking to compel Illinois to appropriate $75 million to fund a 2% wage increase. State v. AFSCME Council 31, 2016 IL 118422, 51 N. E. 3d 738, 740–742, and n. 4. In short, the union speech at issue in this case is overwhelmingly of substantial public concern. C The only remaining question under Pickering is whether the State’s proffered interests justify the heavy burden that agency fees inflict on nonmembers’ First Amendment interests. We have already addressed the state interests asserted in Abood—promoting \"labor peace\" and avoiding free riders, see supra, at 11–18—and we will not repeat that analysis. In Harris and this case, defenders of Abood have asserted a different state interest—in the words of the Harris dissent, the State’s \"interest in bargaining with an ade¬quately funded exclusive bargaining agent.\" 573 U. S., at ___ (KAGAN, J., dissenting) (slip op., at 7); see also post, at 6–7 (KAGAN, J., dissenting). This was not \"the interest Abood recognized and protected,\" Harris, supra, at ___ (slip op., at 7) (KAGAN, J., dissenting), and, in any event, it is insufficient. Although the dissent would accept without any serious independent evaluation the State’s assertion that the absence of agency fees would cripple public-sector unions and thus impair the efficiency of government operations, see post, at 8–9, 11, ample experience, as we have noted, supra, at 12, shows that this is questionable. Especially in light of the more rigorous form of Pickering analysis that would apply in this context, see supra, at 23– 25, the balance tips decisively in favor of the employees’ free speech rights. We readily acknowledge, as Pickering did, that \"the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.\" 391 U. S., at 568. Our analysis is consistent with that principle. The exacting scrutiny standard we apply in this case was developed in the context of commercial speech, another area where the government has traditionally enjoyed greater-than-usual power to regulate speech. See supra, at 10. It is also not disputed that the State may require that a union serve as exclusive bargaining agent for its employees—itself a significant impingement on associational freedoms that would not be tolerated in other contexts. We simply draw the line at allowing the government to go further still and require all employees to support the union irrespective of whether they share its views. Nothing in the Pickering line of cases requires us to uphold every speech restriction the government imposes as an employer. See Pickering, supra, at 564–566 (holding teacher’s dismissal for criticizing school board unconstitutional); Rankin v. McPherson, 483 U. S. 378, 392 (1987) (holding clerical employee’s dismissal for supporting assassination attempt on President unconstitutional); Treasury Employees, 513 U. S., at 477 (holding federal-employee honoraria ban unconstitutional). VI For the reasons given above, we conclude that public-sector agency-shop arrangements violate the First Amendment, and Abood erred in concluding otherwise. There remains the question whether stare decisis nonetheless counsels against overruling Abood. It does not. \"Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.\" Payne v. Tennessee, 501 U. S. 808, 827 (1991). We will not overturn a past decision unless there are strong grounds for doing so. United States v. International Business Machines Corp., 517 U. S. 843, 855–856 (1996); Citizens United, 558 U. S., at 377 (ROBERTS, C. J., concurring). But as we have often recognized, stare decisis is \"‘not an inexorable command.’\" Pearson v. Callahan, 555 U. S. 223, 233 (2009); see also Lawrence v. Texas, 539 U. S. 558, 577 (2003); State Oil Co. v. Khan, 522 U. S. 3, 20 (1997); Agostini v. Felton, 521 U. S. 203, 235 (1997); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 63 (1996); Payne, supra, at 828. The doctrine \"is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.\" Agostini, supra, at 235. And stare decisis applies with perhaps least force of all to decisions that wrongly denied First Amendment rights: \"This Court has not hesitated to overrule decisions offensive to the First Amendment (a fixed star in our constitutional constellation, if there is one).\" Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 500 (2007) (Scalia, J., concurring in part and concurring in judgment) (internal quotation marks omitted); see also Citizens United, supra, at 362–365 (overruling Austin, 494 U. S. 652); Barnette, 319 U. S., at 642 (overruling Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940)). Our cases identify factors that should be taken into account in deciding whether to overrule a past decision. Five of these are most important here: the quality of Abood’s reasoning, the workability of the rule it established, its consistency with other related decisions, devel¬opments since the decision was handed down, and reliance on the decision. After analyzing these factors, we conclude that stare decisis does not require us to retain Abood. A An important factor in determining whether a precedent should be overruled is the quality of its reasoning, see Citizens United, 558 U. S., at 363–364; id., at 382–385 (ROBERTS, C. J., concurring); Lawrence, 539 U. S., at 577– 578, and as we explained in Harris, Abood was poorly reasoned, see 573 U. S., at ___–___ (slip op., at 17–20). We will summarize, but not repeat, Harris’s lengthy discussion of the issue. Abood went wrong at the start when it concluded that two prior decisions, Railway Employes v. Hanson, 351 U. S. 225 (1956), and Machinists v. Street, 367 U. S. 740 (1961), \"appear[ed] to require validation of the agencyshop agreement before [the Court].\" 431 U. S., at 226. Properly understood, those decisions did no such thing. Both cases involved Congress’s \"bare authorization\" of private-sector union shops under the Railway Labor Act. Street, supra, at 749 (emphasis added).24 Abood failed to appreciate that a very different First Amendment question arises when a State requires its employees to pay agency fees. See Harris, supra, at ___ (slip op., at 17). Moreover, neither Hanson nor Street gave careful consideration to the First Amendment. In Hanson, the primary questions were whether Congress exceeded its power under the Commerce Clause or violated substantive due process by authorizing private union-shop arrangements under the Commerce and Due Process Clauses. 351 U. S., at 233–235. After deciding those questions, the Court summarily dismissed what was essentially a facial First Amendment challenge, noting that the record did not substantiate the challengers’ claim. Id., at 238; see Harris, supra, at ___ (slip op., at 17). For its part, Street was decided as a matter of statutory construction, and so did not reach any constitutional issue. 367 U. S., at 749–750, 768–769. Abood nevertheless took the view that Hanson and Street \"all but decided\" the important free speech issue that was before the Court. Harris, 573 U. S., at ___ (slip op., at 17). As we said in Harris, \"[s]urely a First Amendment issue of this importance deserved better treatment.\" Ibid. Abood’s unwarranted reliance on Hanson and Street appears to have contributed to another mistake: Abood judged the constitutionality of public-sector agency fees under a deferential standard that finds no support in our free speech cases. (As noted, supra, at 10–11, today’s dissent makes the same fundamental mistake.) Abood did not independently evaluate the strength of the government interests that were said to support the challenged agency-fee provision; nor did it ask how well that provision actually promoted those interests or whether they could have been adequately served without impinging so heavily on the free speech rights of nonmembers. Rather, Abood followed Hanson and Street, which it interpreted as having deferred to \"the legislative assessment of the important contribution of the union shop to the system of labor rela¬tions established by Congress.\" 431 U. S., at 222 (emphasis added). But Hanson deferred to that judgment in deciding the Commerce Clause and substantive due process questions that were the focus of the case. Such deference to legislative judgments is inappropriate in deciding free speech issues. If Abood had considered whether agency fees were actually needed to serve the asserted state interests, it might not have made the serious mistake of assuming that one of those interests—\"labor peace\"—demanded, not only that a single union be designated as the exclusive representative of all the employees in the relevant unit, but also that nonmembers be required to pay agency fees. Deferring to a perceived legislative judgment, Abood failed to see that the designation of a union as exclusive representative and the imposition of agency fees are not inextricably linked. See supra, at 11–12; Harris, supra, at ___ (slip op., at 31). Abood also did not sufficiently take into account the difference between the effects of agency fees in public- and private-sector collective bargaining. The challengers in Abood argued that collective bargaining with a government employer, unlike collective bargaining in the private sector, involves \"inherently ‘political’\" speech. 431 U. S., at 226. The Court did not dispute that characterization, and in fact conceded that \"decision-making by a public employer is above all a political process\" driven more by policy concerns than economic ones. Id., at 228; see id., at 228–231. But (again invoking Hanson), the Abood Court asserted that public employees do not have \"weightier First Amendment interest[s]\" against compelled speech than do private employees. Id., at 229. That missed the point. Assuming for the sake of argument that the First Amendment applies at all to private-sector agency-shop arrangements, the individual interests at stake still differ. \"In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector.\" Harris, 573 U. S., at ___ (slip op., at 17). Overlooking the importance of this distinction, \"Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends.\" Id., at ___ (slip op., at 18). Likewise, \"Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either ‘chargeable’ . . . or nonchargeable.\" Ibid. Nor did Abood \"foresee the practical problems that would face objecting nonmembers.\" Id., at ___ (slip op., at 19). In sum, as detailed in Harris, Abood was not well reasoned.25 B Another relevant consideration in the stare decisis calculus is the workability of the precedent in question, Montejo v. Louisiana, 556 U. S. 778, 792 (2009), and that factor also weighs against Abood. 1 Abood’s line between chargeable and nonchargeable union expenditures has proved to be impossible to draw with precision. We tried to give the line some definition in Lehnert. There, a majority of the Court adopted a threepart test requiring that chargeable expenses (1) be \"‘ger¬mane’\" to collective bargaining, (2) be \"justified\" by the government’s labor-peace and free-rider interests, and (3) not add \"significantly\" to the burden on free speech, 500 U. S., at 519, but the Court splintered over the application of this test, see id., at 519–522 (plurality opinion); id., at 533–534 (Marshall, J., concurring in part and dissenting in part). That division was not surprising. As the Lehnert dissenters aptly observed, each part of the majority’s test \"involves a substantial judgment call,\" id., at 551 (opinion of Scalia, J.), rendering the test \"altogether malleable\" and \"no[t] principled,\" id., at 563 (KENNEDY, J., concurring in judgment in part and dissenting in part). Justice Scalia presciently warned that Lehnert’s amorphous standard would invite \"perpetua[l] give-it-a-try litigation,\" id., at 551, and the Court’s experience with union lobbying expenses illustrates the point. The Lehnert plurality held that money spent on lobbying for increased education funding was not chargeable. Id., at 519–522. But Justice Marshall—applying the same three-prong test—reached precisely the opposite conclusion. Id., at 533–542. And Lehnert failed to settle the matter; States and unions have continued to \"give it a try\" ever since. In Knox, for example, we confronted a union’s claim that the costs of lobbying the legislature and the electorate about a ballot measure were chargeable expenses under Lehnert. See Brief for Respondent in Knox v. Service Employees, O. T. 2011, No. 10–1121, pp. 48–53. The Court rejected this claim out of hand, 567 U. S., at 320–321, but the dissent refused to do so, id., at 336 (opinion of BREYER, J.). And in the present case, nonmembers are required to pay for unspecified \"[l]obbying\" expenses and for \"[s]ervices\" that \"may ultimately inure to the benefit of the members of the local bargaining unit.\" App. to Pet. for Cert. 31a–32a. That formulation is broad enough to encompass just about anything that the union might choose to do. Respondents agree that Abood’s chargeable-nonchargeable line suffers from \"a vagueness problem,\" that it sometimes \"allows what it shouldn’t allow,\" and that \"a firm[er] line c[ould] be drawn.\" Tr. of Oral Arg. 47–48. They therefore argue that we should \"consider revisiting\" this part of Abood. Tr. of Oral Arg. 66; see Brief for Union Respondent 46–47; Brief for State Respondents 30. This concession only underscores the reality that Abood has proved unworkable: Not even the parties defending agency fees support the line that it has taken this Court over 40 years to draw. 2 Objecting employees also face a daunting and expensive task if they wish to challenge union chargeability determinations. While Hudson requires a union to provide nonmembers with \"sufficient information to gauge the propriety of the union’s fee,\" 475 U. S., at 306, the Hudson notice in the present case and in others that have come before us do not begin to permit a nonmember to make such a determination. In this case, the notice lists categories of expenses and sets out the amount in each category that is said to be attributable to chargeable and nonchargeable expenses. Here are some examples regarding the Union respondent’s expenditures: Category Total Expense Chargeable Expense Salary and Benefits $14,718,708 $11,830,230 Office Printing, Supplies, and Advertising $148,272 $127,959 Postage and Freight $373,509 $268,107 Telephone $214,820 $192,721 Convention Expense $268,855 $268,855 See App. to Pet. for Cert. 35a–36a. How could any nonmember determine whether these numbers are even close to the mark without launching a legal challenge and retaining the services of attorneys and accountants? Indeed, even with such services, it would be a laborious and difficult task to check these figures.26 The Union respondent argues that challenging its chargeability determinations is not burdensome because the Union pays for the costs of arbitration, see Brief for Union Respondent 10–11, but objectors must still pay for the attorneys and experts needed to mount a serious challenge. And the attorney’s fees incurred in such a proceeding can be substantial. See, e.g., Knox v. Chiang, 2013 WL 2434606, *15 (ED Cal., June 5, 2013) (attorney’s fees in Knox exceeded $1 million). The Union respondent’s suggestion that an objector could obtain adequate review without even showing up at an arbitration, see App. to Pet. for Cert. 40a–41a, is therefore farfetched. C Developments since Abood, both factual and legal, have also \"eroded\" the decision’s \"underpinnings\" and left it an outlier among our First Amendment cases. United States v. Gaudin, 515 U. S. 506, 521 (1995). 1 Abood pinned its result on the \"unsupported empirical assumption\" that \"the principle of exclusive representation in the public sector is dependent on a union or agency shop.\" Harris, 573 U. S., at ___ (slip op., at 20); Abood, 431 U. S., at 220–222. But, as already noted, experience has shown otherwise. See supra, at 11–12. It is also significant that the Court decided Abood against a very different legal and economic backdrop. Public-sector unionism was a relatively new phenomenon in 1977. The first State to permit collective bargaining by government employees was Wisconsin in 1959, R. Kearney & P. Mareschal, Labor Relations in the Public Sector 64 (5th ed. 2014), and public-sector union membership remained relatively low until a \"spurt\" in the late 1960’s and early 1970’s, shortly before Abood was decided, Freeman, Unionism Comes to the Public Sector, 24 J. Econ. Lit. 41, 45 (1986). Since then, public-sector union membership has come to surpass private-sector union membership, even though there are nearly four times as many total private-sector employees as public-sector employees. B. Hirsch & D. Macpherson, Union Membership and Earnings Data Book 9–10, 12, 16 (2013 ed.). This ascendance of public-sector unions has been marked by a parallel increase in public spending. In 1970, total state and local government expenditures amounted to $646 per capita in nominal terms, or about $4,000 per capita in 2014 dollars. See Dept. of Commerce, Statistical Abstract of the United States: 1972, p. 419; CPI Inflation Calculator, BLS, http://data.bls.gov/cgi-bin/cpicalc.pl. By 2014, that figure had ballooned to approximately $10,238 per capita. ProQuest, Statistical Abstract of the United States: 2018, pp. 17, Table 14, 300, Table 469. Not all that increase can be attributed to public-sector unions, of course, but the mounting costs of public-employee wages, benefits, and pensions undoubtedly played a substantial role. We are told, for example, that Illinois’ pension funds are underfunded by $129 billion as a result of generous public-employee retirement packages. Brief for Jason R. Barclay et al. as Amici Curiae 9, 14. Unsustainable collective-bargaining agreements have also been blamed for multiple municipal bankruptcies. See Brief for State of Michigan et al. as Amici Curiae 10–19. These developments, and the political debate over public spending and debt they have spurred, have given collective-bargaining issues a political valence that Abood did not fully appreciate. 2 Abood is also an \"anomaly\" in our First Amendment jurisprudence, as we recognized in Harris and Knox. Harris, supra, at ___ (slip op., at 8); Knox, 567 U. S., at 311. This is not an altogether new observation. In Abood itself, Justice Powell faulted the Court for failing to perform the \"‘exacting scrutiny’\" applied in other cases involving significant impingements on First Amendment rights. 431 U. S., at 259; see id., at 259–260, and n. 14. Our later cases involving compelled speech and association have also employed exacting scrutiny, if not a more demanding standard. See, e.g., Roberts, 468 U. S., at 623; United Foods, 533 U. S., at 414. And we have more recently refused, even in agency-fee cases, to extend Abood beyond circumstances where it directly controls. See Knox, supra, at 314; Harris, supra, at ___–___ (slip op., at 28–29). Abood particularly sticks out when viewed against our cases holding that public employees generally may not be required to support a political party. See Elrod, 427 U. S. 347; Branti, 445 U. S. 507; Rutan, 497 U. S. 62; O’Hare Truck Service, Inc. v. City of Northlake, 518 U. S. 712 (1996). The Court reached that conclusion despite a \"long tradition\" of political patronage in government. Rutan, supra, at 95 (Scalia, J., dissenting); see also Elrod, 427 U. S., at 353 (plurality opinion); id., at 377–378 (Powell, J., dissenting). It is an odd feature of our First Amendment cases that political patronage has been deemed largely unconstitutional, while forced subsidization of union speech (which has no such pedigree) has been largely permitted. As Justice Powell observed: \"I am at a loss to understand why the State’s decision to adopt the agency shop in the public sector should be worthy of greater deference, when challenged on First Amendment grounds, than its decision to adhere to the tradition of political patronage.\" Abood, supra, at 260, n. 14 (opinion concurring in judgment) (citing Elrod, supra, at 376–380, 382–387 (Powell, J., dissenting); emphasis added). We have no occasion here to reconsider our political patronage decisions, but Justice Powell’s observation is sound as far as it goes. By overruling Abood, we end the oddity of privileging compelled union support over compelled party support and bring a measure of greater coherence to our First Amendment law. D In some cases, reliance provides a strong reason for adhering to established law, see, e.g., Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202–203 (1991), and this is the factor that is stressed most strongly by respondents, their amici, and the dissent. They contend that collective-bargaining agreements now in effect were negotiated with agency fees in mind and that unions may have given up other benefits in exchange for provi¬sions granting them such fees. Tr. of Oral Arg. 67–68; see Brief for State Respondents 54; Brief for Union Respondent 50; post, at 22–26 (KAGAN, J., dissenting). In this case, however, reliance does not carry decisive weight. For one thing, it would be unconscionable to permit free speech rights to be abridged in perpetuity in order to preserve contract provisions that will expire on their own in a few years’ time. \"The fact that [public-sector unions] may view [agency fees] as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that [nonmembers] share in having their constitutional rights fully protected.\" Arizona v. Gant, 556 U. S. 332, 349 (2009). For another, Abood does not provide \"a clear or easily applicable standard, so arguments for reliance based on its clarity are misplaced.\" South Dakota v. Wayfair, Inc., ante, at 20; see supra, at 38–41. This is especially so because public-sector unions have been on notice for years regarding this Court’s misgivings about Abood. In Knox, decided in 2012, we described Abood as a First Amendment \"anomaly.\" 567 U. S., at 311. Two years later in Harris, we were asked to overrule Abood, and while we found it unnecessary to take that step, we cataloged Abood’s many weaknesses. In 2015, we granted a petition for certiorari asking us to review a decision that sustained an agency-fee arrangement under Abood. Friedrichs v. California Teachers Assn., 576 U. S. ___. After exhaustive briefing and argument on the question whether Abood should be overruled, we affirmed the decision below by an equally divided vote. 578 U. S. ___ (2016) (per curiam). During this period of time, any public-sector union seeking an agency-fee provision in a collective-bargaining agreement must have understood that the constitutionality of such a provision was uncertain. That is certainly true with respect to the collective-bargaining agreement in the present case. That agree¬ment initially ran from July 1, 2012, until June 30, 2015. App. 331. Since then, the agreement has been extended pursuant to a provision providing for automatic renewal for an additional year unless either party gives timely notice that it desires to amend or terminate the contract. Ibid. Thus, for the past three years, the Union could not have been confident about the continuation of the agency-fee arrangement for more than a year at a time. Because public-sector collective-bargaining agreements are generally of rather short duration, a great many of those now in effect probably began or were renewed since Knox (2012) or Harris (2014). But even if an agreement antedates those decisions, the union was able to protect itself if an agency-fee provision was essential to the overall bargain. A union’s attorneys undoubtedly understand that if one provision of a collective-bargaining agreement is found to be unlawful, the remaining provisions are likely to remain in effect. See NLRB v. Rockaway News Supply Co., 345 U. S. 71, 76–79 (1953); see also 8 R. Lord, Williston on Contracts §19:70 (4th ed. 2010). Any union believing that an agency-fee provision was essential to its bargain could have insisted on a provision giving it greater protection. The agreement in the present case, by contrast, provides expressly that the invalidation of any part of the agreement \"shall not invalidate the remaining portions,\" which \"shall remain in full force and effect.\" App. 328. Such severability clauses ensure that \"entire contracts\" are not \"br[ought] down\" by today’s ruling. Post, at 23, n. 5 (KAGAN, J., dissenting). In short, the uncertain status of Abood, the lack of clarity it provides, the short-term nature of collective-bargaining agreements, and the ability of unions to protect themselves if an agency-fee provision was crucial to its bargain all work to undermine the force of reliance as a factor supporting Abood.27 We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely. All these reasons—that Abood’s proponents have abandoned its reasoning, that the precedent has proved unworkable, that it conflicts with other First Amendment decisions, and that subsequent developments have eroded its underpinnings—provide the \"‘special justification[s]’\" for overruling Abood. Post, at 19 (KAGAN, J., dissenting) (quoting Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 8)). VII For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. Under Illinois law, if a public-sector collective-bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the nonmember’s wages. §315/6(e). No form of employee consent is required. This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Johnson v. Zerbst, 304 U. S. 458, 464 (1938); see also Knox, 567 U. S., at 312–313. Rather, to be effective, the waiver must be freely given and shown by \"clear and compelling\" evidence. Curtis Publishing Co. v. Butts, 388 U. S. 130, 145 (1967) (plurality opinion); see also College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 680–682 (1999). Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met. Abood was wrongly decided and is now overruled. The judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "15-1293", "syllabus": "Simon Tam, lead singer of the rock group \"The Slants,\" chose this moniker in order to \"reclaim\" the term and drain its denigrating force as a derogatory term for Asian persons. Tam sought federal registration of the mark \"THE SLANTS.\" The Patent and Trademark Office (PTO) denied the application under a Lanham Act provision prohibiting the registration of trademarks that may \"disparage . . . or bring . . . into contemp[t] or disrepute\" any \"persons, living or dead.\" 15 U. S. C. §1052(a). Tam contested the denial of registration through the administrative appeals process, to no avail. He then took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause. Held: The judgment is affirmed. 808 F. 3d 1321, affirmed. JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, II, and III–A, concluding: 1. The disparagement clause applies to marks that disparage the members of a racial or ethnic group. Tam’s view, that the clause applies only to natural or juristic persons, is refuted by the plain terms of the clause, which uses the word \"persons.\" A mark that disparages a \"substantial\" percentage of the members of a racial or ethnic group necessarily disparages many \"persons,\" namely, members of that group. Tam’s narrow reading also clashes with the breadth of the disparagement clause, which by its terms applies not just to \"persons,\" but also to \"institutions\" and \"beliefs.\" §1052(a). Had Congress wanted to confine the reach of the clause, it could have used the phrase \"particular living individual,\" which it used in neighboring §1052(c). Tam contends that his interpretation is supported by legislative history and by the PTO’s practice for many years of registering marks that plainly denigrated certain groups. But an inquiry into the meaning of the statute’s text ceases when, as here, \"the statutory language is unambiguous and the statutory scheme is coherent and consistent.\" Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (internal quotation marks omitted). Even if resort to legislative history and early enforcement practice were appropriate, Tam has presented nothing showing a congressional intent to adopt his interpretation, and the PTO’s practice in the years following the disparagement clause’s enactment is unenlightening. Pp. 8–12. 2. The disparagement clause violates the First Amendment’s Free Speech Clause. Contrary to the Government’s contention, trademarks are private, not government speech. Because the \"Free Speech Clause . . . does not regulate government speech,\" Pleasant Grove City v. Summum, 555 U. S. 460, 467, the government is not required to maintain viewpoint neutrality on its own speech. This Court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. The Federal Government does not dream up the trademarks registered by the PTO. Except as required by §1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. If the mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory. And once a mark is registered, the PTO is not authorized to remove it from the register unless a party moves for cancellation, the registration expires, or the Federal Trade Commission initiates proceedings based on certain grounds. It is thus farfetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently. And none of this Court’s government-speech cases supports the idea that registered trademarks are government speech. Johanns v. Livestock Marketing Assn., 544 U. S. 550; Pleasant Grove City v. Summum, 555 U. S. 460; and Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ___, distinguished. Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way. Pp. 12–18. JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE BREYER, concluded in Parts III–B, III–C, and IV: (a) The Government’s argument that this case is governed by the Court’s subsidized-speech cases is unpersuasive. Those cases all involved cash subsidies or their equivalent, e.g., funds to private parties for family planning services in Rust v. Sullivan, 500 U. S. 173, and cash grants to artists in National Endowment for Arts v. Finley, 524 U. S. 569. The federal registration of a trademark is nothing like these programs. The PTO does not pay money to parties seeking registration of a mark; it requires the payment of fees to file an application and to maintain the registration once it is granted. The Government responds that registration provides valuable non-monetary benefits traceable to the Government’s resources devoted to registering the marks, but nearly every government service requires the expenditure of government funds. This is true of services that benefit everyone, like police and fire protection, as well as services that are utilized by only some, e.g., the adjudication of private lawsuits and the use of public parks and highways. Pp. 18–20. (b) Also unpersuasive is the Government’s claim that the disparagement clause is constitutional under a \"government-program\" doctrine, an argument which is based on a merger of this Court’s government-speech cases and subsidy cases. It points to two cases involving a public employer’s collection of union dues from its employees, Davenport v. Washington Ed. Assn., 551 U. S. 177, and Ysursa v. Pocatello Ed. Assn., 555 U. S. 353, but these cases occupy a special area of First Amendment case law that is far removed from the registration of trademarks. Cases in which government creates a limited public forum for private speech, thus allowing for some content- and speaker-based restrictions, see, e.g., Good News Club v. Milford Central School, 533 U. S. 98, 106–107; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 831, are potentially more analogous. But even in those cases, viewpoint discrimination is forbidden. The disparagement clause denies registration to any mark that is offensive to a substantial percentage of the members of any group. That is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint. The \"public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.\" Street v. New York, 394 U. S. 576, 592. Pp. 20–23. (c) The dispute between the parties over whether trademarks are commercial speech subject to the relaxed scrutiny outlined in Central Hudson Gas & Elect. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, need not be resolved here because the disparagement clause cannot withstand even Central Hudson review. Under Central Hudson, a restriction of speech must serve \"a substantial interest\" and be \"narrowly drawn.\" Id., at 564–565 (internal quotation marks omitted). One purported interest is in preventing speech expressing ideas that offend, but that idea strikes at the heart of the First Amendment. The second interest asserted is protecting the orderly flow of commerce from disruption caused by trademarks that support invidious discrimination; but the clause, which reaches any trademark that disparages any person, group, or institution, is not narrowly drawn. Pp. 23–26. JUSTICE KENNEDY, joined by JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, agreed that 15 U. S. C. §1052(a) constitutes viewpoint discrimination, concluding: (a) With few narrow exceptions, a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828–829. The test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed. Here, the disparagement clause identifies the relevant subject as \"persons, living or dead, institutions, beliefs, or national symbols,\" §1052(a); and within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus reflects the Government’s disapproval of a subset of messages it finds offensive, the essence of viewpoint discrimination. The Government’s arguments in defense of the statute are unpersuasive. Pp. 2–5. (b) Regardless of whether trademarks are commercial speech, the viewpoint based discrimination here necessarily invokes heightened scrutiny. See Sorrell v. IMS Health Inc., 564 U. S. 552, 566. To the extent trademarks qualify as commercial speech, they are an example of why that category does not serve as a blanket exemption from the First Amendment’s requirement of viewpoint neutrality. In the realm of trademarks, the metaphorical marketplace of ideas becomes a tangible, powerful reality. To permit viewpoint discrimination in this context is to permit Government censorship. Pp. 5–7.", "opinion": "This case concerns a dance-rock band’s application for federal trademark registration of the band’s name, \"The Slants.\" \"Slants\" is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to \"reclaim\" the term and drain its denigrating force. The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may \"disparage . . . or bring . . . into contemp[t] or disrepute\" any \"persons, living or dead.\" 15 U. S. C. §1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend. I A \"The principle underlying trademark protection is that distinctive marks—words, names, symbols, and the like— can help distinguish a particular artisan’s goods from those of others.\" B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. ___, ___ (2015) (slip op., at 3); see also Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U. S. 205, 212 (2000). A trademark \"designate[s] the goods as the product of a particular trader\" and \"protect[s] his good will against the sale of another’s product as his.\" United Drug Co. v. Theodore Rectanus Co., 248 U. S. 90, 97 (1918); see also Hanover Star Milling Co. v. Metcalf, 240 U. S. 403, 412–413 (1916). It helps consumers identify goods and services that they wish to purchase, as well as those they want to avoid. See Wal-Mart Stores, supra, at 212–213; Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 198 (1985). \"[F]ederal law does not create trademarks.\" B&B Hardware, supra, at ___ (slip op., at 3). Trademarks and their precursors have ancient origins, and trademarks were protected at common law and in equity at the time of the founding of our country. 3 J. McCarthy, Trademarks and Unfair Competition §19:8 (4th ed. 2017) (hereinafter McCarthy); 1 id., §§5:1, 5:2, 5:3; Pattishal, The Constitutional Foundations of American Trademark Law, 78 Trademark Rep. 456, 457–458 (1988); Pattishall, Two Hundred Years of American Trademark Law, 68 Trademark Rep. 121, 121–123 (1978); see Trade-Mark Cases, 100 U. S. 82, 92 (1879). For most of the 19th century, trademark protection was the province of the States. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 763, 780– 782 (1992) (Stevens, J., concurring in judgment); id., at 785 (THOMAS, J., concurring in judgment). Eventually, Congress stepped in to provide a degree of national uniformity, passing the first federal legislation protecting trademarks in 1870. See Act of July 8, 1870, §§77–84, 16 Stat. 210–212. The foundation of current federal trademark law is the Lanham Act, enacted in 1946. See Act of July 5, 1946, ch. 540, 60 Stat. 427. By that time, trademark had expanded far beyond phrases that do no more than identify a good or service. Then, as now, trademarks often consisted of catchy phrases that convey a message. Under the Lanham Act, trademarks that are \"used in commerce\" may be placed on the \"principal register,\" that is, they may be federally registered. 15 U. S. C. §1051(a)(1). And some marks \"capable of distinguishing [an] applicant’s goods or services and not registrable on the principal register . . . which are in lawful use in commerce by the owner thereof \" may instead be placed on a different federal register: the supplemental register. §1091(a). There are now more than two million marks that have active federal certificates of registration. PTO Performance and Accountability Report, Fiscal Year 2016, p. 192 (Table 15), https://www.uspto.gov/sites/default/files/ documents/USPTOFY16PAR.pdf (all Internet materials as last visited June 16, 2017). This system of federal registration helps to ensure that trademarks are fully protected and supports the free flow of commerce. \"[N]ational protection of trademarks is desirable,\" we have explained, \"because trademarks foster competition and the maintenance of quality by securing to the producer the benefits of good reputation.\" San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 531 (1987) (internal quotation marks omitted); see also Park ’N Fly, Inc., supra, at 198 (\"The Lanham Act provides national protection of trademarks in order to secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers\"). B Without federal registration, a valid trademark may still be used in commerce. See 3 McCarthy §19:8. And an unregistered trademark can be enforced against would-be infringers in several ways. Most important, even if a trademark is not federally registered, it may still be enforceable under §43(a) of the Lanham Act, which creates a federal cause of action for trademark infringement. See Two Pesos, supra, at 768 (\"Section 43(a) prohibits a broader range of practices than does §32, which applies to registered marks, but it is common ground that §43(a) protects qualifying unregistered trademarks\" (internal quotation marks and citation omitted)).1 Unregistered trademarks may also be entitled to protection under other federal statutes, such as the Anti-cybersquatting Consumer Protection Act, 15 U. S. C. §1125(d). See 5 McCarthy §25A:49, at 25A–198 (\"[T]here is no requirement [in the Anti-cybersquatting Act] that the protected ‘mark’ be registered: unregistered common law marks are protected by the Act\"). And an unregistered trademark can be enforced under state common law, or if it has been registered in a State, under that State’s registration system. See 3 id., §19:3, at 19–23 (explaining that \"[t]he federal system of registration and protection does not preempt parallel state law protection, either by state common law or state registration\" and \"[i]n the vast majority of situations, federal and state trademark law peacefully coexist\"); id., §22:1 (discussing state trademark registration systems). Federal registration, however, \"confers important legal rights and benefits on trademark owners who register their marks.\" B&B Hardware, 575 U. S., at ___ (slip op., at 3) (internal quotation marks omitted). Registration on the principal register (1) \"serves as ‘constructive notice of the registrant’s claim of ownership’ of the mark,\" ibid. (quoting 15 U. S. C. §1072); (2) \"is ‘prima facie evidence of the validity of the registered mark and of the registration of the mark, of the owner’s ownership of the mark, and of the owner’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate,’\" B & B Hardware, 575 U. S. ___ (slip op., at 3) (quoting §1057(b)); and (3) can make a mark \"‘incontestable’\" once a mark has been registered for five years,\" ibid. (quoting §§1065, 1115(b)); see Park ’N Fly, 469 U. S., at 193. Registration also enables the trademark holder \"to stop the importation into the United States of articles bearing an infringing mark.\" 3 McCarthy §19:9, at 19–38; see 15 U. S. C. §1124. C The Lanham Act contains provisions that bar certain trademarks from the principal register. For example, a trademark cannot be registered if it is \"merely descriptive or deceptively misdescriptive\" of goods, §1052(e)(1), or if it is so similar to an already registered trademark or trade name that it is \"likely . . . to cause confusion, or to cause mistake, or to deceive,\" §1052(d). At issue in this case is one such provision, which we will call \"the disparagement clause.\" This provision prohibits the registration of a trademark \"which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.\" §1052(a). 2 This clause appeared in the original Lanham Act and has remained the same to this day. See §2(a), 60 Stat. 428. When deciding whether a trademark is disparaging, an examiner at the PTO generally applies a \"two-part test.\" The examiner first considers \"the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services.\" Trademark Manual of Examining Procedure §1203.03(b)(i) (Apr. 2017), p. 1200–150, http://tmep.uspto.gov. \"If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols,\" the examiner moves to the second step, asking \"whether that meaning may be disparaging to a substantial composite3 of the referenced group.\" Ibid. If the examiner finds that a \"substantial composite, although not necessarily a majority, of the referenced group would find the proposed mark . . . to be disparaging in the context of contemporary attitudes,\" a prima facie case of disparagement is made out, and the burden shifts to the applicant to prove that the trademark is not disparaging. Ibid. What is more, the PTO has specified that \"[t]he fact that an applicant may be a member of that group or has good intentions underlying its use of a term does not obviate the fact that a substantial composite of the referenced group would find the term objectionable.\" Ibid. D Simon Tam is the lead singer of \"The Slants.\" In re Tam, 808 F. 3d 1321, 1331 (CA Fed. 2015) (en banc), as corrected (Feb. 11, 2016). He chose this moniker in order to \"reclaim\" and \"take ownership\" of stereotypes about people of Asian ethnicity. Ibid. (internal quotation marks omitted). The group \"draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes\" and has given its albums names such as \"The Yellow Album\" and \"Slanted Eyes, Slanted Hearts.\" Ibid. Tam sought federal registration of \"THE SLANTS,\" on the principal register, App. 17, but an examining attorney at the PTO rejected the request, applying the PTO’s two-part framework and finding that \"there is . . . a substantial composite of persons who find the term in the applied-for mark offensive.\" Id., at 30. The examining attorney relied in part on the fact that \"numerous dictionaries define ‘slants’ or ‘slant-eyes’ as a derogatory or offensive term.\" Id., at 29. The examining attorney also relied on a finding that \"the band’s name has been found offensive numerous times\"—citing a performance that was canceled because of the band’s moniker and the fact that \"several bloggers and commenters to articles on the band have indicated that they find the term and the applied-for mark offensive.\" Id., at 29–30. Tam contested the denial of registration before the examining attorney and before the PTO’s Trademark Trial and Appeal Board (TTAB) but to no avail. Eventually, he took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause. The majority found that the clause engages in viewpoint-based discrimination, that the clause regulates the expressive component of trademarks and consequently cannot be treated as commercial speech, and that the clause is subject to and cannot satisfy strict scrutiny. See 808 F. 3d, at 1334–1339. The majority also rejected the Government’s argument that registered trademarks constitute government speech, as well as the Government’s contention that federal registration is a form of government subsidy. See id., at 1339–1355. And the majority opined that even if the disparagement clause were analyzed under this Court’s commercial speech cases, the clause would fail the \"intermediate scrutiny\" that those cases prescribe. See id., at 1355–1357. Several judges wrote separately, advancing an assortment of theories. Concurring, Judge O’Malley agreed with the majority’s reasoning but added that the disparagement clause is unconstitutionally vague. See id., at 1358– 1363. Judge Dyk concurred in part and dissented in part. He argued that trademark registration is a government subsidy and that the disparagement clause is facially constitutional, but he found the clause unconstitutional as applied to THE SLANTS because that mark constitutes \"core expression\" and was not adopted for the purpose of disparaging Asian-Americans. See id., at 1363–1374. In dissent, Judge Lourie agreed with Judge Dyk that the clause is facially constitutional but concluded for a variety of reasons that it is also constitutional as applied in this case. See id., at 1374–1376. Judge Reyna also dissented, maintaining that trademarks are commercial speech and that the disparagement clause survives intermediate scrutiny because it \"directly advances the government’s substantial interest in the orderly flow of commerce.\" See id., at 1376–1382. The Government filed a petition for certiorari, which we granted in order to decide whether the disparagement clause \"is facially invalid under the Free Speech Clause of the First Amendment.\" Pet. for Cert. i; see sub. nom. Lee v. Tam, 579 U. S. ___ (2016). II Before reaching the question whether the disparagement clause violates the First Amendment, we consider Tam’s argument that the clause does not reach marks that disparage racial or ethnic groups. The clause prohibits the registration of marks that disparage \"persons,\" and Tam claims that the term \"persons\" \"includes only natural and juristic persons,\" not \"non-juristic entities such as racial and ethnic groups.\" Brief for Respondent 46. Tam never raised this argument before the PTO or the Federal Circuit, and we declined to grant certiorari on this question when Tam asked us to do so, see Brief Responding to Petition for Certiorari, pp. i, 17–21. Normally, that would be the end of the matter in this Court. See, e.g., Yee v. Escondido, 503 U. S. 519, 534–538 (1992); Freytag v. Commissioner, 501 U. S. 868, 894–895 (1991) (Scalia, J., concurring in part and concurring in judgment). But as the Government pointed out in connection with its petition for certiorari, accepting Tam’s statutory interpretation would resolve this case and leave the First Amendment question for another day. See Reply Brief 9. \"[W]e have often stressed\" that it is \"importan[t] [to] avoid[d] the premature adjudication of constitutional questions,\" Clinton v. Jones, 520 U. S. 681, 690 (1997), and 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 (1944). See also Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 461 (1945); Burton v. United States, 196 U. S. 283, 295 (1905). We thus begin by explaining why Tam’s argument about the definition of \"persons\" in the Lanham Act is meritless. As noted, the disparagement clause prohibits the registration of trademarks \"which may disparage . . . persons, living or dead.\" 15 U. S. C. §1052(a). Tam points to a definition of \"person\" in the Lanham Act, which provides that \"[i]n the construction of this chapter, unless the contrary is plainly apparent from the context . . . [t]he term ‘person’ and any other word or term used to designate the applicant or other entitled to a benefit or privilege or rendered liable under the provisions of this chapter includes a juristic person as well as a natural person.\" §1127. Because racial and ethnic groups are neither natural nor \"juristic\" persons, Tam asserts, these groups fall outside this definition. Brief for Respondent 46–48. Tam’s argument is refuted by the plain terms of the disparagement clause. The clause applies to marks that disparage \"persons.\" A mark that disparages a \"substantial\" percentage of the members of a racial or ethnic group, Trademark Manual §1203.03(b)(i), at 1200–150, necessarily disparages many \"persons,\" namely, members of that group. Tam’s argument would fail even if the clause used the singular term \"person,\" but Congress’ use of the plural \"persons\" makes the point doubly clear.4 Tam’s narrow reading of the term \"persons\" also clashes with the breadth of the disparagement clause. By its terms, the clause applies to marks that disparage, not just \"persons,\" but also \"institutions\" and \"beliefs.\" 15 U. S. C. §1052(a). It thus applies to the members of any group whose members share particular \"beliefs,\" such as political, ideological, and religious groups. It applies to marks that denigrate \"institutions,\" and on Tam’s reading, it also reaches \"juristic\" persons such as corporations, unions, and other unincorporated associations. See §1127. Thus, the clause is not limited to marks that disparage a particular natural person. If Congress had wanted to confine the reach of the disparagement clause in the way that Tam suggests, it would have been easy to do so. A neighboring provision of the Lanham Act denies registration to any trademark that \"[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.\" §1052(c) (emphasis added). Tam contends that his interpretation of the disparagement clause is supported by its legislative history and by the PTO’s willingness for many years to register marks that plainly denigrated African-Americans and Native Americans. These arguments are unpersuasive. As always, our inquiry into the meaning of the statute’s text ceases when \"the statutory language is unambiguous and the statutory scheme is coherent and consistent.\" Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (2002) (internal quotation marks omitted). Here, it is clear that the prohibition against registering trademarks \"which may disparage . . . persons,\" §1052(a), prohibits registration of terms that disparage persons who share a common race or ethnicity. Even if resort to legislative history and early enforcement practice were appropriate, we would find Tam’s arguments unconvincing. Tam has not brought to our attention any evidence in the legislative history showing that Congress meant to adopt his interpretation. And the practice of the PTO in the years following the enactment of the disparagement clause is unenlightening. The admitted vagueness of the disparagement test5 and the huge volume of applications have produced a haphazard record of enforcement. (Even today, the principal register is replete with marks that many would regard as disparaging to racial and ethnic groups.6) Registration of the offensive marks that Tam cites is likely attributable not to the acceptance of his interpretation of the clause but to other factors—most likely the regrettable attitudes and sensibilities of the time in question. III Because the disparagement clause applies to marks that disparage the members of a racial or ethnic group, we must decide whether the clause violates the Free Speech Clause of the First Amendment. And at the outset, we must consider three arguments that would either eliminate any First Amendment protection or result in highly permissive rational-basis review. Specifically, the Government contends (1) that trademarks are government speech, not private speech, (2) that trademarks are a form of government subsidy, and (3) that the constitutionality of the disparagement clause should be tested under a new \"government-program\" doctrine. We address each of these arguments below. A The First Amendment prohibits Congress and other government entities and actors from \"abridging the freedom of speech\"; the First Amendment does not say that Congress and other government entities must abridge their own ability to speak freely. And our cases recognize that \"[t]he Free Speech Clause . . . does not regulate government speech.\" Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009); see Johanns v. Livestock Marketing Assn., 544 U.S. 550, 553 (2005) (\"[T]he Government’s own speech . . . is exempt from First Amendment scrutiny\"); Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 235 (2000). As we have said, \"it is not easy to imagine how government could function\" if it were subject to the restrictions that the First Amendment imposes on private speech. Summum, supra, at 468; see Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ___, ___–___ (2015) (slip op., at 5–7). \"‘[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others,’\" Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 394 (1993), but imposing a requirement of viewpoint-neutrality on government speech would be paralyzing. When a government entity embarks on a course of action, it necessarily takes a particular viewpoint and rejects others. The Free Speech Clause does not require government to maintain viewpoint neutrality when its officers and employees speak about that venture. Here is a simple example. During the Second World War, the Federal Government produced and distributed millions of posters to promote the war effort.7 There were posters urging enlistment, the purchase of war bonds, and the conservation of scarce resources.8 These posters expressed a viewpoint, but the First Amendment did not demand that the Government balance the message of these posters by producing and distributing posters encouraging Americans to refrain from engaging in these activities. But while the government-speech doctrine is important—indeed, essential—it is a doctrine that is susceptible to dangerous misuse. If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents. At issue here is the content of trademarks that are registered by the PTO, an arm of the Federal Government. The Federal Government does not dream up these marks, and it does not edit marks submitted for registration. Except as required by the statute involved here, 15 U. S. C. §1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. Thus, unless that section is thought to apply, an examiner does not inquire whether any viewpoint conveyed by a mark is consistent with Government policy or whether any such viewpoint is consistent with that expressed by other marks already on the principal register. Instead, if the mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory. Ibid. (requiring that \"[n]o trademark . . . shall be refused registration on the principal register on account of its nature unless\" it falls within an enumerated statutory exception). And if an examiner finds that a mark is eligible for placement on the principal register, that decision is not reviewed by any higher official unless the registration is challenged. See §§1062(a), 1071; 37 CFR §41.31(a) (2016). Moreover, once a mark is registered, the PTO is not authorized to remove it from the register unless a party moves for cancellation, the registration expires, or the Federal Trade Commission initiates proceedings based on certain grounds. See 15 U. S. C. §§1058(a), 1059, 1064; 37 CFR §§2.111(b), 2.160. In light of all this, it is far-fetched to suggest that the content of a registered mark is government speech. If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things. See App. to Brief for Pro-Football, Inc., as Amicus Curiae. It is expressing contradictory views.9 It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public. For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to \"make.believe\" (Sony),10 \"Think different\" (Apple),11 \"Just do it\" (Nike),12 or \"Have it your way\" (Burger King)13? Was the Government warning about a coming disaster when it registered the mark \"EndTime Ministries\"14? The PTO has made it clear that registration does not constitute approval of a mark. See In re Old Glory Condom Corp., 26 USPQ 2d 1216, 1220, n. 3 (TTAB 1993) (\"[I]ssuance of a trademark registration . . . is not a government imprimatur\"). And it is unlikely that more than a tiny fraction of the public has any idea what federal registration of a trademark means. See Application of National Distillers & Chemical Corp., 49 C. C. P. A. (Pat.) 854, 863, 297 F.2d 941, 949 (1962) (Rich, J., concurring) (\"The purchasing public knows no more about trademark registrations than a man walking down the street in a strange city knows about legal title to the land and buildings he passes\" (emphasis deleted)). None of our government speech cases even remotely supports the idea that registered trademarks are government speech. In Johanns, we considered advertisements promoting the sale of beef products. A federal statute called for the creation of a program of paid advertising \"‘to advance the image and desirability of beef and beef products.’\" 544 U. S., at 561 (quoting 7 U. S. C. § 2902(13)). Congress and the Secretary of Agriculture provided guidelines for the content of the ads, Department of Agriculture officials attended the meetings at which the content of specific ads was discussed, and the Secretary could edit or reject any proposed ad. 544 U. S., at 561. Noting that \"[t]he message set out in the beef promotions [was] from beginning to end the message established by the Federal Government,\" we held that the ads were government speech. Id., at 560. The Government’s involvement in the creation of these beef ads bears no resemblance to anything that occurs when a trademark is registered. Our decision in Summum is similarly far afield. A small city park contained 15 monuments. 555 U.S., at 464. Eleven had been donated by private groups, and one of these displayed the Ten Commandments. Id., at 464–465. A religious group claimed that the city, by accepting donated monuments, had created a limited public forum for private speech and was therefore obligated to place in the park a monument expressing the group’s religious beliefs. Holding that the monuments in the park represented government speech, we cited many factors. Governments have used monuments to speak to the public since ancient times; parks have traditionally been selective in accepting and displaying donated monuments; parks would be overrun if they were obligated to accept all monuments offered by private groups; \"[p]ublic parks are often closely identified in the public mind with the government unit that owns the land\"; and \"[t]he monuments that are accepted . . . are meant to convey and have the effect of conveying a government message.\" Id., at 472. Trademarks share none of these characteristics. Trademarks have not traditionally been used to convey a Government message. With the exception of the enforcement of 15 U. S. C. §1052(a), the viewpoint expressed by a mark has not played a role in the decision whether to place it on the principal register. And there is no evidence that the public associates the contents of trademarks with the Federal Government. This brings us to the case on which the Government relies most heavily, Walker, which likely marks the outer bounds of the government-speech doctrine. Holding that the messages on Texas specialty license plates are government speech, the Walker Court cited three factors distilled from Summum. 576 U. S., at ___–___ (slip op., at 7–8). First, license plates have long been used by the States to convey state messages. Id., at ___–___ (slip op., at 9–10). Second, license plates \"are often closely identified in the public mind\" with the State, since they are manufactured and owned by the State, generally designed by the State, and serve as a form of \"government ID.\" Id., at ___ (slip op., at 10) (internal quotation marks omitted). Third, Texas \"maintain[ed] direct control over the messages conveyed on its specialty plates.\" Id., at ___ (slip op., at 11). As explained above, none of these factors are present in this case. In sum, the federal registration of trademarks is vastly different from the beef ads in Johanns, the monuments in Summum, and even the specialty license plates in Walker. Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine. For if the registration of trademarks constituted government speech, other systems of government registration could easily be characterized in the same way. Perhaps the most worrisome implication of the Government’s argument concerns the system of copyright registration. If federal registration makes a trademark government speech and thus eliminates all First Amendment protection, would the registration of the copyright for a book produce a similar transformation? See 808 F.3d, at 1346 (explaining that if trademark registration amounts to government speech, \"then copyright registration\" which \"has identical accoutrements\" would \"likewise amount to government speech\"). The Government attempts to distinguish copyright on the ground that it is \"‘the engine of free expression,’\" Brief for Petitioner 47 (quoting Eldred v. Ashcroft, 537 U. S. 186, 219 (2003)), but as this case illustrates, trademarks often have an expressive content. Companies spend huge amounts to create and publicize trademarks that convey a message. It is true that the necessary brevity of trademarks limits what they can say. But powerful messages can sometimes be conveyed in just a few words. Trademarks are private, not government, speech. B We next address the Government’s argument that this case is governed by cases in which this Court has upheld the constitutionality of government programs that subsidized speech expressing a particular viewpoint. These cases implicate a notoriously tricky question of constitutional law. \"[W]e have held that the Government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit.’\" Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. ___, ___ (2013) (slip op., at 8) (some internal quotation marks omitted). But at the same time, government is not required to subsidize activities that it does not wish to promote. Ibid. Determining which of these principles applies in a particular case \"is not always self-evident,\" id., at ___ (slip op., at 11), but no difficult question is presented here. Unlike the present case, the decisions on which the Government relies all involved cash subsidies or their equivalent. In Rust v. Sullivan, 500 U. S. 173 (1991), a federal law provided funds to private parties for family planning services. In National Endowment for Arts v. Finley, 524 U. S. 569 (1998), cash grants were awarded to artists. And federal funding for public libraries was at issue in United States v. American Library Assn., Inc., 539 U.S. 194 (2003). In other cases, we have regarded tax benefits as comparable to cash subsidies. See Regan v. Taxation With Representation of Wash., 461 U. S. 540 (1983); Cammarano v. United States, 358 U. S 498 (1959). The federal registration of a trademark is nothing like the programs at issue in these cases. The PTO does not pay money to parties seeking registration of a mark. Quite the contrary is true: An applicant for registration must pay the PTO a filing fee of $225–$600. 37 CFR §2.6(a)(1). (Tam submitted a fee of $275 as part of his application to register THE SLANTS. App. 18.) And to maintain federal registration, the holder of a mark must pay a fee of $300–$500 every 10 years. §2.6(a)(5); see also 15 U. S. C. §1059(a). The Federal Circuit concluded that these fees have fully supported the registration system for the past 27 years. 808 F.3d, at 1353. The Government responds that registration provides valuable non-monetary benefits that \"are directly traceable to the resources devoted by the federal government to examining, publishing, and issuing certificates of registration for those marks.\" Brief for Petitioner 27. But just about every government service requires the expenditure of government funds. This is true of services that benefit everyone, like police and fire protection, as well as services that are utilized by only some, e.g., the adjudication of private lawsuits and the use of public parks and highways. Trademark registration is not the only government registration scheme. For example, the Federal Government registers copyrights and patents. State governments and their subdivisions register the title to real property and security interests; they issue driver’s licenses, motor vehicle registrations, and hunting, fishing, and boating licenses or permits. Cases like Rust and Finley are not instructive in analyzing the constitutionality of restrictions on speech imposed in connection with such services. C Finally, the Government urges us to sustain the disparagement clause under a new doctrine that would apply to \"government-program\" cases. For the most part, this argument simply merges our government-speech cases and the previously discussed subsidy cases in an attempt to construct a broader doctrine that can be applied to the registration of trademarks. The only new element in this construct consists of two cases involving a public employer’s collection of union dues from its employees. But those cases occupy a special area of First Amendment case law, and they are far removed from the registration of trademarks. In Davenport v. Washington Ed. Assn., 551 U. S. 177, 181–182 (2007), a Washington law permitted a public employer automatically to deduct from the wages of employees who chose not to join the union the portion of union dues used for activities related to collective bargaining. But unless these employees affirmatively consented, the law did not allow the employer to collect the portion of union dues that would be used in election activities. Id., at 180–182. A public employee union argued that this law unconstitutionally restricted its speech based on its content; that is, the law permitted the employer to assist union speech on matters relating to collective bargaining but made it harder for the union to collect money to support its election activities. Id., at 188. Upholding this law, we characterized it as imposing a \"modest limitation\" on an \"extraordinary benefit,\" namely, taking money from the wages of non-union members and turning it over to the union free of charge. Id., at 184. Refusing to confer an even greater benefit, we held, did not upset the marketplace of ideas and did not abridge the union’s free speech rights. Id., at 189–190. Ysursa v. Pocatello Ed. Assn., 555 U. S. 353 (2009), is similar. There, we considered an Idaho law that allowed public employees to elect to have union dues deducted from their wages but did not allow such a deduction for money remitted to the union’s political action committee. Id., at 355. We reasoned that the \"the government . . . [was] not required to assist others in funding the expression of particular ideas.\" Id., at 358; see also id., at 355 (\"The First Amendment . . . does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression\"). Davenport and Ysursa are akin to our subsidy cases. Although the laws at issue in Davenport and Ysursa did not provide cash subsidies to the unions, they conferred a very valuable benefit—the right to negotiate a collective-bargaining agreement under which non-members would be obligated to pay an agency fee that the public employer would collect and turn over to the union free of charge. As in the cash subsidy cases, the laws conferred this benefit because it was thought that this arrangement served important government interests. See Abood v. Detroit Bd. of Ed., 431 U. S. 209, 224–226 (1977). But the challenged laws did not go further and provide convenient collection mechanisms for money to be used in political activities. In essence, the Washington and Idaho lawmakers chose to confer a substantial non-cash benefit for the purpose of furthering activities that they particularly desired to promote but not to provide a similar benefit for the purpose of furthering other activities. Thus, Davenport and Ysursa are no more relevant for present purposes than the subsidy cases previously discussed.15 Potentially more analogous are cases in which a unit of government creates a limited public forum for private speech. See, e.g., Good News Club v. Milford Central School, 533 U. S. 98, 106–107 (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 831 (1995); Lamb’s Chapel, 508 U. S., at 392–393. See also Legal Services Corporation v. Velazquez, 531 U. S. 533, 541–544 (2001). When government creates such a forum, in either a literal or \"metaphysical\" sense, see Rosenberger, 515 U. S., at 830, some content- and speaker-based restrictions may be allowed, see id., at 830–831. However, even in such cases, what we have termed \"viewpoint discrimination\" is forbidden. Id., at 831. Our cases use the term \"viewpoint\" discrimination in a broad sense, see ibid., and in that sense, the disparagement clause discriminates on the bases of \"viewpoint.\" To be sure, the clause evenhandedly prohibits disparagement of all groups. It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue. It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint. We have said time and again that \"the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.\" Street v. New York, 394 U. S. 576, 592 (1969). See also Texas v. Johnson, 491 U. S. 397, 414 (1989) (\"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable\"); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55–56 (1988); Coates v. Cincinnati, 402 U. S. 611, 615 (1971); Bachellar v. Maryland, 397 U. S. 564, 567 (1970); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 509–514 (1969); Cox v. Louisiana, 379 U. S. 536, 551 (1965); Edwards v. South Carolina, 372 U. S. 229, 237–238 (1963); Terminiello v. Chicago, 337 U. S. 1, 4–5 (1949); Cantwell v. Connecticut, 310 U. S. 296, 311 (1940); Schneider v. State (Town of Irvington), 308 U. S. 147, 161 (1939); De Jonge v. Oregon, 299 U. S. 353, 365 (1937). For this reason, the disparagement clause cannot be saved by analyzing it as a type of government program in which some content- and speaker-based restrictions are permitted.16 IV Having concluded that the disparagement clause cannot be sustained under our government-speech or subsidy cases or under the Government’s proposed \"government-program\" doctrine, we must confront a dispute between the parties on the question whether trademarks are commercial speech and are thus subject to the relaxed scrutiny outlined in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980). The Government and amici supporting its position argue that all trademarks are commercial speech. They note that the central purposes of trademarks are commercial and that federal law regulates trademarks to promote fair and orderly interstate commerce. Tam and his amici, on the other hand, contend that many, if not all, trademarks have an expressive component. In other words, these trademarks do not simply identify the source of a product or service but go on to say something more, either about the product or service or some broader issue. The trademark in this case illustrates this point. The name \"The Slants\" not only identifies the band but expresses a view about social issues. We need not resolve this debate between the parties because the disparagement clause cannot withstand even Central Hudson review.17 Under Central Hudson, a restriction of speech must serve \"a substantial interest,\" and it must be \"narrowly drawn.\" Id., at 564–565 (internal quotation marks omitted). This means, among other things, that \"[t]he regulatory technique may extend only as far as the interest it serves.\" Id., at 565. The disparagement clause fails this requirement. It is claimed that the disparagement clause serves two interests. The first is phrased in a variety of ways in the briefs. Echoing language in one of the opinions below, the Government asserts an interest in preventing \"‘underrepresented groups’\" from being \"‘bombarded with demeaning messages in commercial advertising.’\" Brief for Petitioner 48 (quoting 808 F.3d, at 1364 (Dyk, J., concurring in part and dissenting in part)). An amicus supporting the Government refers to \"encouraging racial tolerance and protecting the privacy and welfare of individuals.\" Brief for Native American Organizations as Amici Curiae 21. But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express \"the thought that we hate.\" United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting). The second interest asserted is protecting the orderly flow of commerce. See 808 F. 3d, at 1379–1381 (Reyna, J., dissenting); Brief for Petitioner 49; Brief for Native American Organizations as Amicus Curiae 18–21. Commerce, we are told, is disrupted by trademarks that \"involv[e] disparagement of race, gender, ethnicity, national origin, religion, sexual orientation, and similar demographic classification.\" 808 F.3d, at 1380–1381 (opinion of Reyna, J.). Such trademarks are analogized to discriminatory conduct, which has been recognized to have an adverse effect on commerce. See ibid.; Brief for Petitioner 49; Brief for Native American Organizations as Amici Curiae 18–20. A simple answer to this argument is that the disparagement clause is not \"narrowly drawn\" to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: \"Down with racists,\" \"Down with sexists,\" \"Down with homophobes.\" It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted. The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution. Is it conceivable that commerce would be disrupted by a trademark saying: \"James Buchanan was a disastrous president\" or \"Slavery is an evil institution\"? There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social \"volatility,\" free speech would be endangered. For these reasons, we hold that the disparagement clause violates the Free Speech Clause of the First Amendment. The judgment of the Federal Circuit is affirmed."},
{"docket_number": "17-530", "syllabus": "As the Great Depression took its toll, struggling railroad pension funds reached the brink of insolvency. During that time before the rise of the modern interstate highway system, privately owned railroads employed large numbers of Americans and provided services vital to the nation’s commerce. To address the emergency, Congress adopted the Railroad Retirement Tax Act of 1937. That legislation federalized private railroad pension plans and it remains in force even today. Under the law’s terms, private railroads and their employees pay a tax based on employees’ incomes. In return, the federal government provides employees a pension often more generous than the social security system supplies employees in other industries. This case arises from a peculiar feature of the statute and its history. At the time of the Act’s adoption, railroads compensated employees not just with money but also with food, lodging, railroad tickets, and the like. Because railroads typically didn’t count these in-kind benefits when calculating an employee’s pension on retirement, neither did Congress in its new statutory pension scheme. Nor did Congress seek to tax these in-kind benefits. Instead, it limited its levies to employee \"compensation,\" and defined that term to capture only \"any form of money remuneration.\" It’s this limitation that poses today’s question. To encourage employee performance and to align employee and corporate goals, some railroads have (like employers in many fields) adopted employee stock option plans. The government argues that these stock options qualify as a form of \"compensation\" subject to taxation under the Act. In its view, stock options can easily be converted into money and so qualify as \"money remuneration.\" The railroads and their employees reply that stock options aren’t \"money remuneration\" and remind the Court that when Congress passed the Act it sought to mimic existing industry pension practices that generally took no notice of in-kind benefits. Who has the better of it? Held: Employee stock options are not taxable \"compensation\" under the Railroad Retirement Tax Act because they are not \"money remuneration.\" When Congress adopted the Act in 1937, \"money\" was understood as currency \"issued by [a] recognized authority as a medium of exchange.\" Pretty obviously, stock options do not fall within that definition. While stock can be bought or sold for money, it isn’t usually considered a medium of exchange. Few people value goods and services in terms of stock, or buy groceries and pay rent with stock. Adding the word \"remuneration\" also does not alter the meaning of the phrase. When the statute speaks of taxing \"any form of money remuneration,\" it indicates Congress wanted to tax monetary compensation in any of the many forms an employer might choose. It does not prove that Congress wanted to tax things, like stock, that are not money at all. The broader statutory context points to this conclusion. For example, the 1939 Internal Revenue Code, adopted just two years later, also treated \"money\" and \"stock\" as different things. See, e.g., §27(d). And a companion statute enacted by the same Congress, the Federal Insurance Contributions Act, taxes \"all remuneration,\" including benefits \"paid in any medium other than cash.\" §3121(a). The Congress that enacted both of these pension schemes knew well the difference between \"money\" and \"all\" forms of remuneration and its choice to use the narrower term in the context of railroad pensions alone requires respect, not disregard. Even the IRS (then the Bureau of Internal Revenue) seems to have understood all this back in 1938. Shortly after the Railroad Retirement Tax Act’s enactment, the IRS issued a regulation explaining that the Act taxes \"all remuneration in money, or in something which may be used in lieu of money (scrip and merchandise orders, for example).\" The regulation said the Act covered things like \"[s]alaries, wages, commissions, fees, [and] bonuses.\" But the regulation nowhere suggested that stock was taxable. In light of these textual and structural clues and others, the Court thinks it’s clear enough that the term \"money\" unambiguously excludes \"stock.\" Pp. 2–8. 856 F. 3d 490, reversed and remanded.", "opinion": "As the Great Depression took its toll, struggling railroad pension funds reached the brink of insolvency. During that time before the modern interstate highway system, privately owned railroads employed large numbers of Americans and provided services vital to the nation’s commerce. To address the emergency, Congress adopted the Railroad Retirement Tax Act of 1937. That legislation federalized private railroad pension plans and it remains in force today. Under the law’s terms, private railroads and their employees pay a tax based on employees’ incomes. 26 U. S. C. §§3201(a)–(b), 3221(a)–(b). In return, the federal government provides employees a pension often more generous than the social security system supplies employees in other industries. See Hisquierdo v. Hisquierdo, 439 U. S. 572, 573–575 (1979). Our case arises from a peculiar feature of the statute and its history. At the time of the Act’s adoption, railroads compensated employees not just with money but also with food, lodging, railroad tickets, and the like. Because railroads typically didn’t count these in-kind benefits when calculating an employee’s pension on retirement, neither did Congress in its new statutory pension scheme. Nor did Congress seek to tax these in-kind benefits. Instead, it limited itself to taxing employee \"compensation,\" and defined that term to capture only \"any form of money remuneration.\" §3231(e)(1). It’s this limitation that poses today’s question. To encourage employee performance and align employee and corporate goals, some railroads (like employers in many fields) have adopted employee stock option plans. Typical of many, the plan before us permits an employee to exercise stock options in various ways—purchasing stock with her own money and holding it as an investment; purchasing stock but immediately selling a portion to finance the purchase; or purchasing stock at the option price, selling it all immediately at the market price, and taking the profits. App. 41–42. The government argues that stock options like these qualify as a form of taxable \"money remuneration\" under the Act because stock can be easily converted into money. The railroads reply that stock options aren’t \"money\" at all and remind us that when Congress passed the Act it sought to mimic existing industry pension practices that generally took no notice of in-kind benefits. Who has the better of it? Courts have divided on the answer, so we agreed to take up the question. We start with the key statutory term: \"money remuneration.\" As usual, our job is to interpret the words consistent with their \"ordinary meaning . . . at the time Congress enacted the statute.\" Perrin v. United States, 444 U. S. 37, 42 (1979). And when Congress adopted the Act in 1937, \"money\" was ordinarily understood to mean currency \"issued by [a] recognized authority as a medium of exchange.\" Webster’s New International Dictionary 1583 (2d ed. 1942); see also 6 Oxford English Dictionary 603 (1st ed. 1933) (\"In mod[ern] use commonly applied indifferently to coin and to such promissory documents representing coin (esp. government and bank notes) as are currently accepted as a medium of exchange\"); Black’s Law Dictionary 1200 (3d ed. 1933) (in its \"popular sense, ‘money’ means any currency, tokens, bank-notes, or other circulating medium in general use as the representative of value\"); Railway Express Agency, Inc. v. Virginia, 347 U. S. 359, 365 (1954) (\"[M]oney . . . is a medium of exchange\"). Pretty obviously, stock options do not fall within that definition. While stock can be bought or sold for money, few of us buy groceries or pay rent or value goods and services in terms of stock. When was the last time you heard a friend say his new car cost \"2,450 shares of Microsoft\"? Good luck, too, trying to convince the IRS to treat your stock options as a medium of exchange at tax time. See Rev. Rul. 76–350, 1976–2 Cum. Bull. 396; see also, e.g., In re Boyle’s Estate, 2 Cal. App. 2d 234, 236 (1934) (\"[T]he word ‘money’ when taken in its ordinary and grammatical sense does not include corporate stocks\"); Helvering v. Credit Alliance Corp., 316 U. S. 107, 112 (1942) (distinguishing between \"money and . . . stock\"). Nor does adding the word \"remuneration\" alter the calculus. Of course, \"remuneration\" can encompass any kind of reward or compensation, not just money. 8 Oxford English Dictionary 439. But in the sentence before us, the adjective \"money\" modifies the noun \"remuneration.\" So \"money\" limits the kinds of remuneration that will qualify for taxation; \"remuneration\" doesn’t expand what counts as money. When the statute speaks of taxing \"any form of money remuneration,\" then, it indicates Congress wanted to tax monetary compensation in any of the many forms an employer might choose—coins, paper currency, checks, wire transfers, and the like. It does not prove Congress wanted to tax things, like stock, that aren’t money at all. The broader statutory context points to the same conclusion the immediate text suggests. The 1939 Internal Revenue Code, part of the same title as our statute and adopted just two years later, expressly treated \"money\" and \"stock\" as different things. Consider a few examples. The Code described \"stock of the corporation\" as \"property other than money.\" §27(d). It explained that a corporate distribution is taxable when distributed \"either (A) in [the company’s] stock . . . or (B) in money.\" §115(f)(2). And it discussed transfers of \"money in addition to . . . stock or securities.\" §372(b). While ultimately ruling for the government, even the Court of Appeals in this case conceded that the 1939 Code \"treat[ed] ‘money’ and ‘stock’ as different concepts.\" 856 F. 3d 490, 492 (CA7 2017). That’s not all. The same Congress that enacted the Railroad Retirement Tax Act enacted a companion statute, the Federal Insurance Contributions Act (FICA), to fund social security pensions for employees in other industries. And while the Railroad Retirement Tax Act taxes only \"money remuneration,\" FICA taxes \"all remuneration\"— including benefits \"paid in any medium other than cash.\" §3121(a) (emphasis added). We usually \"presume differences in language like this convey differences in meaning.\" Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 6). And that presumption must bear particular strength when the same Congress passed both statutes to handle much the same task. See INS v. Cardoza-Fonseca, 480 U. S. 421, 432 (1987). The Congress that enacted both of these pension schemes knew well the difference between \"money\" and \"all\" forms of remuneration. Its choice to use the narrower term in the context of railroad pensions alone requires respect, not disregard. Even the IRS (then the Bureau of Internal Revenue) seems to have understood all this back in 1938. Shortly after the Railroad Retirement Tax Act’s enactment, the IRS issued a regulation explaining that the Act taxes \"all remuneration in money, or in something which may be used in lieu of money.\" 26 CFR §410.5 (1938). By way of example, the regulation said the Act taxed things like \"[s]alaries, wages, commissions, fees, [and] bonuses.\" §410.6(a). But it nowhere suggested that stock was taxable. Nor was the possibility lost on the IRS. The IRS said the Act did tax money payments related to stock— \"[p]ayments made by an employer into a stock bonus . . . fund.\" §410.6(f). But the agency did not seek to extend the same treatment to stock itself. So even assuming the validity of the regulation, it seems only to confirm our understanding. To be sure, the regulation also lists \"scrip and merchandise orders\" as examples of qualifying mediums of exchange. §410.5. For argument’s sake, too, we will accept that the word \"scrip\" can sometimes embrace stock. But even if \"scrip\" is capable of bearing this meaning, at the time the IRS promulgated the regulation in 1938 that was not its ordinary meaning. As even the government acknowledged before the Court of Appeals, \"scrip\" ordinarily meant \"company-issued certificates\" that employees could use in lieu of cash \"to purchase merchandise at a company store.\" Brief for United States in Nos. 16–3300 etc. (CA7 2017), p. 37. This understanding fits perfectly as well with the whole phrase in which the term appears; both \"scrip and merchandise orders\" were frequently used at the time to purchase goods at company stores. See, e.g., Webster’s New International Dictionary 2249 (defining \"scrip\" as a \"certificate . . . issued to circulate in lieu of government currency\" or \"by a corporation that pays wages partly in orders on a company store\"); Keokee Consol. Coke Co. v. Taylor, 234 U. S. 224, 226 (1914) (company gave its employees \"scrip . . . as an advance of monthly wages in payment for labor performed\" that could be used to purchase merchandise at the company store); Gatch, Local Money in the United States During the Great Depression, 26 Essays in Economic & Bus. History 47–48 (2008). What does the government have to say about all this? It concedes that money remuneration often means remuneration in a commonly used medium of exchange. But, it submits, the term can carry a much more expansive meaning too. At least sometimes, the government says, \"money\" means any \"property or possessions of any kind viewed as convertible into money or having value expressible in terms of money.\" 6 Oxford English Dictionary 603. The dissent takes the same view. See post, at 3 (opinion of BREYER, J.). But while the term \"money\" sometimes might be used in this much more expansive sense, that isn’t how the term was ordinarily used at the time of the Act’s adoption (or is even today). Baseball cards, vinyl records, snow globes, and fidget spinners all have \"value expressible in terms of money.\" Even that \"priceless\" Picasso has a price. Really, almost anything can be reduced to a \"value expressible in terms of money.\" But in ordinary usage does \"money\" mean almost everything? The government and the dissent supply no persuasive proof that Congress sought to invoke their idiosyncratic definition. If Congress really thought everything is money, why did it take such pains to differentiate between money and stock in the Internal Revenue Code of 1939? Why did it so carefully distinguish \"money remuneration\" in the Act and \"all remuneration\" in FICA? Why did it include the word \"money\" to qualify \"remuneration\" if all remuneration counts as money? And wouldn’t the everything-is-money interpretation encompass railroad tickets, food, and lodging—exactly the sort of in-kind benefits we know the Act was written to exclude? These questions they cannot answer. To be sure, the government and dissent do seek to offer a different structural argument of their own. They point to certain of the Act’s tax exemptions, most notably the exemption for qualified stock options. See 26 U. S. C. §3231(e)(12); post, at 6 (BREYER, J., dissenting). Because the Act excludes qualified stock options from taxation, the argument goes, to avoid superfluity it must include other sorts of stock options like the nonqualified stock options the railroads issued here. The problem, though, is that the exemption covers \"any remuneration on account of \" qualified stock options. §3231(e)(12) (emphasis added). And, as the government concedes, companies sometimes include money payments when qualified stock options are exercised (often to compensate for fractional shares due an employee). Brief for United States 30. As a result, the exemption does work under anyone’s reading. The government replies that Congress would not have bothered to write an exemption that does only this modest work. To have been worth the candle, Congress must have assumed that stock options would qualify as money remuneration without a specific exemption. But we will not join this guessing game. It is not our function \"to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have\" intended. Henson, 582 U. S., at ___ (slip op., at 9). Besides, even if the railroads’ interpretation of the statute threatens to leave one of many exemptions with little to do, that’s hardly a reason to abandon it, for the government’s and dissent’s alternative promises a graver surplusage problem of its own. As it did in 1939, the Internal Revenue Code today repeatedly distinguishes between \"stock\" and \"money.\" See, e.g., §306(c)(2) (referring to a situation where \"money had been distributed in lieu of . . . stock\"). All these distinctions the government and dissent would simply obliterate. Reaching further afield, the government and dissent point to a 1938 agency interpretation of another companion statute, the Railroad Retirement Act of 1937. See post, at 8–9 (BREYER, J., dissenting). Here, the Railroad Retirement Board suggested that the term \"money remuneration\" in the Railroad Retirement Act could sometimes include in-kind benefits. Again we may assume the validity of the regulation because, even taken on its own terms, it only ends up confirming our interpretation. The Board indicated that in-kind benefits could count as money remuneration only if the employer and employee agreed to this treatment and to the dollar value of the benefit. 20 CFR §222.2 (1938). That same year, the Board made clear that stock was treated just like any other in-kind benefit under this rule: \"stock cannot be considered as a ‘form of money remuneration earned by an individual for services rendered’\" unless part of an employee’s \"agreed compensation\" and awarded \"at a definite agreed value.\" Railroad Retirement Bd. Gen. Counsel Memorandum No. L–38– 440, pp. 1–2 (1938). Later, the Board provided fuller explanation for its longstanding view, stating that these conditions are necessary because, unlike FICA, the Act does not cover \"‘remuneration . . . paid in any medium.’\" Railroad Retirement Bd. Gen. Counsel Memorandum No. L–1986–82, p. 6 (1986). For decades, then, the Board has taken the view that nonmonetary remuneration is \"not . . . included in compensation under the [Act] unless the employer and employee first agree to [its] dollar value . . . and then agree that this dollar value shall be part of the employee’s compensation package.\" Ibid. None of these preconditions would be needed, of course, if the Act automatically taxed in-kind benefits as the government and dissent insist. Finally, the government seeks Chevron deference for a more recent IRS interpretation treating \"compensation\" under the Act as having \"the same meaning as the term wages in\" FICA \"except as specifically limited by the Railroad Retirement Tax Act.\" 26 CFR §31.3231(e)–1 (2017). But in light of all the textual and structural clues before us, we think it’s clear enough that the term \"money\" excludes \"stock,\" leaving no ambiguity for the agency to fill. See Chevron U. S. A. Inc. v. Natural Defense Council, Inc., 467 U. S. 837, 843, n. 9 (1984). Nor does the regulation help the government even on its own terms. FICA’s definition of wages—\"all remuneration\"—is \"specifically limited by the Railroad Retirement Tax Act,\" which applies only to \"money remuneration.\" So in the end all the regulation winds up saying is that everyone should look carefully at the relevant statutory texts. We agree, and that is what we have done. The Court of Appeals in this case tried a different tack still, if over a dissent. The majority all but admitted that stock isn’t money, but suggested it would make \"good practical sense\" for our statute to cover stock as well as money. 856 F. 3d, at 492. Meanwhile, Judge Manion dissented, countering that it’s a judge’s job only to apply, not revise or update, the terms of statutes. See id., at 493. The Eighth Circuit made much the same point when it addressed the question. See Union Pacific R. Co. v. United States, 865 F. 3d 1045, 1048–1049 (2017). Judge Manion and the Eighth Circuit were right. Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is why it’s a \"fundamental canon of statutory construction\" that words generally should be \"interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.\" Perrin, 444 U. S., at 42. Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law. This hardly leaves us, as the dissent worries, \"trapped in a monetary time warp, forever limited to those forms of money commonly used in the 1930’s.\" Post, at 3 (opinion of BREYER, J.). While every statute’s meaning is fixed at the time of enactment, new applications may arise in light of changes in the world. So \"money,\" as used in this statute, must always mean a \"medium of exchange.\" But what qualifies as a \"medium of exchange\" may depend on the facts of the day. Take electronic transfers of paychecks. Maybe they weren’t common in 1937, but we do not doubt they would qualify today as \"money remuneration\" under the statute’s original public meaning. The problem with the government’s and the dissent’s position today is not that stock and stock options weren’t common in 1937, but that they were not then—and are not now— recognized as mediums of exchange. The judgment of the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "17-965", "syllabus": "In September 2017, the President issued Proclamation No. 9645, seeking to improve vetting procedures for foreign nationals traveling to the United States by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present a security threat. The Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. Foreign states were selected for inclusion based on a review undertaken pursuant to one of the President’s earlier Executive Orders. As part of that review, the Department of Homeland Security (DHS), in consultation with the State Department and intelligence agencies, developed an information and risk assessment \"baseline.\" DHS then collected and evaluated data for all foreign governments, identifying those having deficient information-sharing practices and presenting national security concerns, as well as other countries \"at risk\" of failing to meet the baseline. After a 50-day period during which the State Department made diplomatic efforts to encourage foreign governments to improve their practices, the Acting Secretary of Homeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient. She recommended entry restrictions for certain nationals from all of those countries but Iraq, which had a close cooperative relationship with the U. S. She also recommended including Somalia, which met the information-sharing component of the baseline standards but had other special risk factors, such as a significant terrorist presence. After consulting with multiple Cabinet members, the President adopted the recommendations and issued the Proclamation Invoking his authority under 8 U. S. C. §§1182(f) and 1185(a), he determined that certain restrictions were necessary to \"prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information\" and \"elicit improved identity-management and information-sharing protocols and practices from foreign governments.\" The Proclamation imposes a range of entry restrictions that vary based on the \"distinct circumstances\" in each of the eight countries. It exempts lawful permanent residents and provides case-by-case waivers under certain circumstances. It also directs DHS to assess on a continuing basis whether the restrictions should be modified or continued, and to report to the President every 180 days. At the completion of the first such review period, the President determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals. Plaintiffs—the State of Hawaii, three individuals with foreign relatives affected by the entry suspension, and the Muslim Association of Hawaii—argue that the Proclamation violates the Immigration and Nationality Act (INA) and the Establishment Clause. The District Court granted a nationwide preliminary injunction barring enforcement of the restrictions. The Ninth Circuit affirmed, concluding that the Proclamation contravened two provisions of the INA: §1182(f), which authorizes the President to \"suspend the entry of all aliens or any class of aliens\" whenever he \"finds\" that their entry \"would be detrimental to the interests of the United States,\" and §1152(a)(1)(A), which provides that \"no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.\" The court did not reach the Establishment Clause claim. Held: 1. This Court assumes without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular non-reviewability or any other statutory non-reviewability issue. See Sale v. Haitian Centers Council, Inc., 509 U. S. 155. Pp. 8–9. 2. The President has lawfully exercised the broad discretion granted to him under §1182(f) to suspend the entry of aliens into the United States. Pp. 9–24. (a) By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with \"ample power\" to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187. The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President \"find[ ]\" that the entry of the covered aliens \"would be detrimental to the interests of the United States.\" The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. He then issued a Proclamation with extensive findings about the deficiencies and their impact. Based on that review, he found that restricting entry of aliens who could not be vetted with adequate information was in the national interest. Even assuming that some form of inquiry into the persuasiveness of the President’s findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings cannot be sustained. The 12-page Proclamation is more detailed than any prior order issued under §1182(f). And such a searching inquiry is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. See, e.g., Sale, 509 U. S., at 187–188. The Proclamation comports with the remaining textual limits in §1182(f). While the word \"suspend\" often connotes a temporary deferral, the President is not required to prescribe in advance a fixed end date for the entry restriction. Like its predecessors, the Proclamation makes clear that its \"conditional restrictions\" will remain in force only so long as necessary to \"address\" the identified \"inadequacies and risks\" within the covered nations. Finally, the Proclamation properly identifies a \"class of aliens\" whose entry is suspended, and the word \"class\" comfortably encompasses a group of people linked by nationality. Pp. 10–15. (b) Plaintiffs have not identified any conflict between the Proclamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. The existing grounds of inadmissibility and the narrow Visa Waiver Program do not address the failure of certain high-risk countries to provide a minimum baseline of reliable information. Further, neither the legislative history of §1182(f) nor historical practice justifies departing from the clear text of the statute. Pp. 15–20. (c) Plaintiffs’ argument that the President’s entry suspension violates §1152(a)(1)(A) ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. Had Congress intended in §1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could have chosen language directed to that end. Common sense and historical practice confirm that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f). Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality. And on plaintiffs’ reading, the President would not be permitted to suspend entry from particular foreign states in response to an epidemic, or even if the United States were on the brink of war. Pp. 20–24. 3. Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment Clause. Pp. 24–38. (a) The individual plaintiffs have Article III standing to challenge the exclusion of their relatives under the Establishment Clause. A person’s interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III injury in fact. Cf., e.g., Kerry v. Din, 576 U. S. ___, ___. Pp. 24–26. (b) Plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims. At the heart of their case is a series of statements by the President and his advisers both during the campaign and since the President assumed office. The issue, however, is not whether to denounce the President’s statements, but the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself. Pp. 26–29. (c) The admission and exclusion of foreign nationals is a \"fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.\" Fiallo v. Bell, 430 U. S. 787, 792. Although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen. That review is limited to whether the Executive gives a \"facially legitimate and bona fide\" reason for its action, Kleindienst v. Mandel, 408 U. S. 753, 769, but the Court need not define the precise contours of that narrow inquiry in this case. For today’s purposes, the Court assumes that it may look behind the face of the Proclamation to the extent of applying rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. Plaintiffs’ extrinsic evidence may be considered, but the policy will be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. Pp. 30–32. (d) On the few occasions where the Court has struck down a policy as illegitimate under rational basis scrutiny, a common thread has been that the laws at issue were \"divorced from any factual context from which [the Court] could discern a relationship to legitimate state interests.\" Romer v. Evans, 517 U. S. 620, 635. The Proclamation does not fit that pattern. It is expressly premised on legitimate purposes and says nothing about religion. The entry restrictions on Muslim-majority nations are limited to countries that were previously designated by Congress or prior administrations as posing national security risks. Moreover, the Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies. Plaintiffs challenge the entry suspension based on their perception of its effectiveness and wisdom, but the Court cannot substitute its own assessment for the Executive’s predictive judgments on such matters. See Holder v. Humanitarian Law Project, 561 U. S. 1, 33–34. Three additional features of the entry policy support the Government’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for various categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. Pp. 33–38. 878 F. 3d 662, reversed and remanded.", "opinion": "Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the President with authority to restrict the entry of aliens whenever he finds that their entry \"would be detrimental to the interests of the United States.\" 8 U. S. C. §1182(f). Relying on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks. Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in this litigation, respondents here, challenged the application of those entry restrictions to certain aliens abroad. We now decide whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment. I A Shortly after taking office, President Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States. 82 Fed. Reg. 8977 (2017) (EO–1). EO–1 directed the Secretary of Homeland Security to conduct a review to examine the adequacy of information provided by foreign governments about their nationals seeking to enter the United States. §3(a). Pending that review, the order suspended for 90 days the entry of foreign nationals from seven countries— Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen— that had been previously identified by Congress or prior administrations as posing heightened terrorism risks. §3(c). The District Court for the Western District of Washington entered a temporary restraining order blocking the entry restrictions, and the Court of Appeals for the Ninth Circuit denied the Government’s request to stay that order. Washington v. Trump, 847 F. 3d 1151 (2017) (per curiam). In response, the President revoked EO–1, replacing it with Executive Order No. 13780, which again directed a worldwide review. 82 Fed. Reg. 13209 (2017) (EO–2). Citing investigative burdens on agencies and the need to diminish the risk that dangerous individuals would enter without adequate vetting, EO–2 also temporarily restricted the entry (with case-by-case waivers) of foreign nationals from six of the countries covered by EO–1: Iran, Libya, Somalia, Sudan, Syria, and Yemen. §§2(c), 3(a). The order explained that those countries had been selected because each \"is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.\" §1(d). The entry restriction was to stay in effect for 90 days, pending completion of the worldwide review. These interim measures were immediately challenged in court. The District Courts for the Districts of Maryland and Hawaii entered nationwide preliminary injunctions barring enforcement of the entry suspension, and the respective Courts of Appeals upheld those injunctions, albeit on different grounds. International Refugee Assistance Project (IRAP) v. Trump, 857 F. 3d 554 (CA4 2017); Hawaii v. Trump, 859 F. 3d 741 (CA9 2017) (per curiam). This Court granted certiorari and stayed the injunctions— allowing the entry suspension to go into effect—with respect to foreign nationals who lacked a \"credible claim of a bona fide relationship\" with a person or entity in the United States. Trump v. IRAP, 582 U. S. ___, ___ (2017) (per curiam) (slip op., at 12). The temporary restrictions in EO–2 expired before this Court took any action, and we vacated the lower court decisions as moot. Trump v. IRAP, 583 U. S. ___ (2017); Trump v. Hawaii, 583 U. S. ___ (2017). On September 24, 2017, after completion of the worldwide review, the President issued the Proclamation before us—Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. 82 Fed. Reg. 45161. The Proclamation (as its title indicates) sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present \"public safety threats.\" §1(a). To further that purpose, the Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. The Proclamation described how foreign states were selected for inclusion based on the review undertaken pursuant to EO–2. As part of that review, the Department of Homeland Security (DHS), in consultation with the State Department and several intelligence agencies, developed a \"baseline\" for the information required from foreign governments to confirm the identity of individuals seeking entry into the United States, and to determine whether those individuals pose a security threat. §1(c). The baseline included three components. The first, \"identity-management information,\" focused on whether a foreign government ensures the integrity of travel documents by issuing electronic passports, reporting lost or stolen passports, and making available additional identity-related information. Second, the agencies considered the extent to which the country discloses information on criminal history and suspected terrorist links, provides travel document exemplars, and facilitates the U. S. Government’s receipt of information about airline passengers and crews traveling to the United States. Finally, the agencies weighed various indicators of national security risk, including whether the foreign state is a known or potential terrorist safe haven and whether it regularly declines to receive returning nationals following final orders of removal from the United States. Ibid. DHS collected and evaluated data regarding all foreign governments. §1(d). It identified 16 countries as having deficient information-sharing practices and presenting national security concerns, and another 31 countries as \"at risk\" of similarly failing to meet the baseline. §1(e). The State Department then undertook diplomatic efforts over a 50-day period to encourage all foreign governments to improve their practices. §1(f). As a result of that effort, numerous countries provided DHS with travel document exemplars and agreed to share information on known or suspected terrorists. Ibid. Following the 50-day period, the Acting Secretary of Homeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient in terms of their risk profile and willingness to provide requested information. The Acting Secretary recommended that the President impose entry restrictions on certain nationals from all of those countries except Iraq. §§1(g), (h). She also concluded that although Somalia generally satisfied the information-sharing component of the baseline standards, its \"identity-management deficiencies\" and \"significant terrorist presence\" presented special circumstances justifying additional limitations. She therefore recommended entry limitations for certain nationals of that country. §1(i). As for Iraq, the Acting Secretary found that entry limitations on its nationals were not warranted given the close cooperative relationship between the U. S. and Iraqi Governments and Iraq’s commitment to combating ISIS. §1(g). After consulting with multiple Cabinet members and other officials, the President adopted the Acting Secretary’s recommendations and issued the Proclamation. Invoking his authority under 8 U. S. C. §§1182(f) and 1185(a), the President determined that certain entry restrictions were necessary to \"prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information\"; \"elicit improved identity-management and information-sharing protocols and practices from foreign governments\"; and otherwise \"advance [the] foreign policy, national security, and counterterrorism objectives\" of the United States. Proclamation §1(h). The President explained that these restrictions would be the \"most likely to encourage cooperation\" while \"protect[ing] the United States until such time as improvements occur.\" Ibid. The Proclamation imposed a range of restrictions that vary based on the \"distinct circumstances\" in each of the eight countries. Ibid. For countries that do not cooperate with the United States in identifying security risks (Iran, North Korea, and Syria), the Proclamation suspends entry of all nationals, except for Iranians seeking nonimmigrant student and exchange-visitor visas. §§2(b)(ii), (d)(ii), (e)(ii). For countries that have information-sharing deficiencies but are nonetheless \"valuable counterterrorism partner[s]\" (Chad, Libya, and Yemen), it restricts entry of nationals seeking immigrant visas and nonimmigrant business or tourist visas. §§2(a)(i), (c)(i), (g)(i). Because Somalia generally satisfies the baseline standards but was found to present special risk factors, the Proclamation suspends entry of nationals seeking immigrant visas and requires additional scrutiny of nationals seeking nonimmigrant visas. §2(h)(ii). And for Venezuela, which refuses to cooperate in information sharing but for which alternative means are available to identify its nationals, the Proclamation limits entry only of certain government officials and their family members on nonimmigrant business or tourist visas. §2(f)(ii). The Proclamation exempts lawful permanent residents and foreign nationals who have been granted asylum. §3(b). It also provides for case-by-case waivers when a foreign national demonstrates undue hardship, and that his entry is in the national interest and would not pose a threat to public safety. §3(c)(i); see also §3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations). The Proclamation further directs DHS to assess on a continuing basis whether entry restrictions should be modified or continued, and to report to the President every 180 days. §4. Upon completion of the first such review period, the President, on the recommendation of the Secretary of Homeland Security, determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals. Presidential Proclamation No. 9723, 83 Fed. Reg. 15937 (2018). B Plaintiffs in this case are the State of Hawaii, three individuals (Dr. Ismail Elshikh, John Doe #1, and John Doe #2), and the Muslim Association of Hawaii. The State operates the University of Hawaii system, which recruits students and faculty from the designated countries. The three individual plaintiffs are U. S. citizens or lawful permanent residents who have relatives from Iran, Syria, and Yemen applying for immigrant or nonimmigrant visas. The Association is a nonprofit organization that operates a mosque in Hawaii. Plaintiffs challenged the Proclamation—except as applied to North Korea and Venezuela—on several grounds. As relevant here, they argued that the Proclamation contravenes provisions in the Immigration and Nationality Act (INA), 66 Stat. 187, as amended. Plaintiffs further claimed that the Proclamation violates the Establishment Clause of the First Amendment, because it was motivated not by concerns pertaining to national security but by animus toward Islam. The District Court granted a nationwide preliminary injunction barring enforcement of the entry restrictions. The court concluded that the Proclamation violated two provisions of the INA: §1182(f), because the President did not make sufficient findings that the entry of the covered foreign nationals would be detrimental to the national interest, and §1152(a)(1)(A), because the policy discriminates against immigrant visa applicants on the basis of nationality. 265 F. Supp. 3d 1140, 1155–1159 (Haw. 2017). The Government requested expedited briefing and sought a stay pending appeal. The Court of Appeals for the Ninth Circuit granted a partial stay, permitting enforcement of the Proclamation with respect to foreign nationals who lack a bona fide relationship with the United States. This Court then stayed the injunction in full pending disposition of the Government’s appeal. 583 U. S. ___ (2017). The Court of Appeals affirmed. The court first held that the Proclamation exceeds the President’s authority under §1182(f). In its view, that provision authorizes only a \"temporary\" suspension of entry in response to \"exigencies\" that \"Congress would be ill-equipped to address.\" 878 F. 3d 662, 684, 688 (2017). The court further reasoned that the Proclamation \"conflicts with the INA’s finely reticulated regulatory scheme\" by addressing \"matters of immigration already passed upon by Congress.\" Id., at 685, 690. The Ninth Circuit then turned to §1152(a)(1)(A) and determined that the entry restrictions also contravene the prohibition on nationality-based discrimination in the issuance of immigrant visas. The court did not reach plaintiffs’ Establishment Clause claim. We granted certiorari. 583 U. S. ___ (2018). II Before addressing the merits of plaintiffs’ statutory claims, we consider whether we have authority to do so. The Government argues that plaintiffs’ challenge to the Proclamation under the INA is not justiciable. Relying on the doctrine of consular non-reviewability, the Government contends that because aliens have no \"claim of right\" to enter the United States, and because exclusion of aliens is \"a fundamental act of sovereignty\" by the political branches, review of an exclusion decision \"is not within the province of any court, unless expressly authorized by law.\" United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542– 543 (1950). According to the Government, that principle barring review is reflected in the INA, which sets forth a comprehensive framework for review of orders of removal, but authorizes judicial review only for aliens physically present in the United States. See Brief for Petitioners 19– 20 (citing 8 U. S. C. §1252). The justiciability of plaintiffs’ challenge under the INA presents a difficult question. The Government made similar arguments that no judicial review was available in Sale v. Haitian Centers Council, Inc., 509 U. S. 155 (1993). The Court in that case, however, went on to consider on the merits a statutory claim like the one before us without addressing the issue of reviewability. The Government does not argue that the doctrine of consular non-reviewability goes to the Court’s jurisdiction, see Tr. of Oral Arg. 13, nor does it point to any provision of the INA that expressly strips the Court of jurisdiction over plaintiffs’ claims, see Sebelius v. Auburn Regional Medical Center, 568 U. S. 145, 153 (2013) (requiring Congress to \"clearly state[]\" that a statutory provision is jurisdictional). As a result, we may assume without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular non-reviewability or any other statutory non-reviewability issue, and we proceed on that basis. III The INA establishes numerous grounds on which an alien abroad may be inadmissible to the United States and ineligible for a visa. See, e.g., 8 U. S. C. §§1182(a)(1) (health-related grounds), (a)(2) (criminal history), (a)(3)(B) (terrorist activities), (a)(3)(C) (foreign policy grounds). Congress has also delegated to the President authority to suspend or restrict the entry of aliens in certain circumstances. The principal source of that authority, §1182(f), enables the President to \"suspend the entry of all aliens or any class of aliens\" whenever he \"finds\" that their entry \"would be detrimental to the interests of the United States.\" Plaintiffs argue that the Proclamation is not a valid exercise of the President’s authority under the INA. In their view, §1182(f) confers only a residual power to temporarily halt the entry of a discrete group of aliens engaged in harmful conduct. They also assert that the Proclamation violates another provision of the INA—8 U. S. C. §1152(a)(1)(A)—because it discriminates on the basis of nationality in the issuance of immigrant visas. By its plain language, §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language. A The text of §1182(f) states: \"Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.\" By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (\"[w]henever [he] finds that the entry\" of aliens \"would be detrimental\" to the national interest); whose entry to suspend (\"all aliens or any class of aliens\"); for how long (\"for such period as he shall deem necessary\"); and on what conditions (\"any restrictions he may deem to be appropriate\"). It is therefore unsurprising that we have previously observed that §1182(f) vests the President with \"ample power\" to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187 (finding it \"perfectly clear\" that the President could \"establish a naval blockade\" to prevent illegal migrants from entering the United States); see also Abourezk v. Reagan, 785 F. 2d 1043, 1049, n. 2 (CADC 1986) (describing the \"sweeping proclamation power\" in §1182(f) as enabling the President to supplement the other grounds of inadmissibility in the INA). The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President \"find[]\" that the entry of the covered aliens \"would be detrimental to the interests of the United States.\" The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. The President then issued a Proclamation setting forth extensive findings describing how deficiencies in the practices of select foreign governments— several of which are state sponsors of terrorism—deprive the Government of \"sufficient information to assess the risks [those countries’ nationals] pose to the United States.\" Proclamation §1(h)(i). Based on that review, the President found that it was in the national interest to restrict entry of aliens who could not be vetted with adequate information—both to protect national security and public safety, and to induce improvement by their home countries. The Proclamation therefore \"craft[ed] . . . country-specific restrictions that would be most likely encourage cooperation given each country’s distinct circumstances,\" while securing the Nation \"until such time as improvements occur.\" Ibid.2 Plaintiffs believe that these findings are insufficient. They argue, as an initial matter, that the Proclamation fails to provide a persuasive rationale for why nationality alone renders the covered foreign nationals a security risk. And they further discount the President’s stated concern about deficient vetting because the Proclamation allows many aliens from the designated countries to enter on nonimmigrant visas. Such arguments are grounded on the premise that §1182(f) not only requires the President to make a finding that entry \"would be detrimental to the interests of the United States,\" but also to explain that finding with sufficient detail to enable judicial review. That premise is questionable. See Webster v. Doe, 486 U. S. 592, 600 (1988) (concluding that a statute authorizing the CIA Director to terminate an employee when the Director \"shall deem such termination necessary or advisable in the interests of the United States\" forecloses \"any meaningful judicial standard of review\"). But even assuming that some form of review is appropriate, plaintiffs’ attacks on the sufficiency of the President’s findings cannot be sustained. The 12-page Proclamation—which thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions—is more detailed than any prior order a President has issued under §1182(f). Contrast Presidential Proclamation No. 6958, 3 CFR 133 (1996) (President Clinton) (explaining in one sentence why suspending entry of members of the Sudanese government and armed forces \"is in the foreign policy interests of the United States\"); Presidential Proclamation No. 4865, 3 CFR 50–51 (1981) (President Reagan) (explaining in five sentences why measures to curtail \"the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern United States\" are \"necessary\"). Moreover, plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. \"Whether the President’s chosen method\" of addressing perceived risks is justified from a policy perspective is \"irrelevant to the scope of his [§1182(f)] authority.\" Sale, 509 U. S., at 187–188. And when the President adopts \"a preventive measure . . . in the context of international affairs and national security,\" he is \"not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.\" Holder v. Humanitarian Law Project, 561 U. S. 1, 35 (2010). The Proclamation also comports with the remaining textual limits in §1182(f). We agree with plaintiffs that the word \"suspend\" often connotes a \"defer[ral] till later,\" Webster’s Third New International Dictionary 2303 (1966). But that does not mean that the President is required to prescribe in advance a fixed end date for the entry restrictions. Section 1182(f) authorizes the President to suspend entry \"for such period as he shall deem necessary.\" It follows that when a President suspends entry in response to a diplomatic dispute or policy concern, he may link the duration of those restrictions, implicitly or explicitly, to the resolution of the triggering condition. See, e.g., Presidential Proclamation No. 5829, 3 CFR 88 (1988) (President Reagan) (suspending the entry of certain Panamanian nationals \"until such time as . . . democracy has been restored in Panama\"); Presidential Proclamation No. 8693, 3 CFR 86–87 (2011) (President Obama) (suspending the entry of individuals subject to a travel restriction under United Nations Security Council resolutions \"until such time as the Secretary of State determines that [the suspension] is no longer necessary\"). In fact, not one of the 43 suspension orders issued prior to this litigation has specified a precise end date. Like its predecessors, the Proclamation makes clear that its \"conditional restrictions\" will remain in force only so long as necessary to \"address\" the identified \"inadequacies and risks\" within the covered nations. Proclamation Preamble, and §1(h); see ibid. (explaining that the aim is to \"relax[] or remove[]\" the entry restrictions \"as soon as possible\"). To that end, the Proclamation establishes an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions should be modified or terminated. §§4(a), (b). Indeed, after the initial review period, the President determined that Chad had made sufficient improvements to its identity-management protocols, and he accordingly lifted the entry suspension on its nationals. See Proclamation No. 9723, 83 Fed. Reg. 15937. Finally, the Proclamation properly identifies a \"class of aliens\"—nationals of select countries—whose entry is suspended. Plaintiffs argue that \"class\" must refer to a well-defined group of individuals who share a common \"characteristic\" apart from nationality. Brief for Respondents 42. But the text of §1182(f), of course, does not say that, and the word \"class\" comfortably encompasses a group of people linked by nationality. Plaintiffs also contend that the class cannot be \"overbroad.\" Brief for Respondents 42. But that simply amounts to an unspoken tailoring requirement found nowhere in Congress’s grant of authority to suspend entry of not only \"any class of aliens\" but \"all aliens.\" In short, the language of §1182(f) is clear, and the Proclamation does not exceed any textual limit on the President’s authority. B Confronted with this \"facially broad grant of power,\" 878 F. 3d, at 688, plaintiffs focus their attention on statutory structure and legislative purpose. They seek support in, first, the immigration scheme reflected in the INA as a whole, and, second, the legislative history of §1182(f) and historical practice. Neither argument justifies departing from the clear text of the statute. 1 Plaintiffs’ structural argument starts with the premise that §1182(f) does not give the President authority to countermand Congress’s considered policy judgments. The President, they say, may supplement the INA, but he cannot supplant it. And in their view, the Proclamation falls in the latter category because Congress has already specified a two-part solution to the problem of aliens seeking entry from countries that do not share sufficient information with the United States. First, Congress designed an individualized vetting system that places the burden on the alien to prove his admissibility. See §1361. Second, instead of banning the entry of nationals from particular countries, Congress sought to encourage information sharing through a Visa Waiver Program offering fast-track admission for countries that cooperate with the United States. See §1187. We may assume that §1182(f) does not allow the President to expressly override particular provisions of the INA. But plaintiffs have not identified any conflict between the statute and the Proclamation that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. To the contrary, the Proclamation supports Congress’s individualized approach for determining admissibility. The INA sets forth various inadmissibility grounds based on connections to terrorism and criminal history, but those provisions can only work when the consular officer has sufficient (and sufficiently reliable) information to make that determination. The Proclamation promotes the effectiveness of the vetting process by helping to ensure the availability of such information. Plaintiffs suggest that the entry restrictions are unnecessary because consular officers can simply deny visas in individual cases when an alien fails to carry his burden of proving admissibility—for example, by failing to produce certified records regarding his criminal history. Brief for Respondents 48. But that misses the point: A critical finding of the Proclamation is that the failure of certain countries to provide reliable information prevents the Government from accurately determining whether an alien is inadmissible or poses a threat. Proclamation §1(h). Unless consular officers are expected to apply categorical rules and deny entry from those countries across the board, fraudulent or unreliable documentation may thwart their review in individual cases. And at any rate, the INA certainly does not require that systemic problems such as the lack of reliable information be addressed only in a progression of case-by-case admissibility determinations. One of the key objectives of the Proclamation is to encourage foreign governments to improve their practices, thus facilitating the Government’s vetting process overall. Ibid. Nor is there a conflict between the Proclamation and the Visa Waiver Program. The Program allows travel without a visa for short-term visitors from 38 countries that have entered into a \"rigorous security partnership\" with the United States. DHS, U. S. Visa Waiver Program (Apr. 6, 2016), http://www.dhs.gov/visa-waiver-program (as last visited June 25, 2018). Eligibility for that partnership involves \"broad and consequential assessments of [the country’s] foreign security standards and operations.\" Ibid. A foreign government must (among other things) undergo a comprehensive evaluation of its \"counterterrorism, law enforcement, immigration enforcement, passport security, and border management capabilities,\" often including \"operational site inspections of airports, seaports, land borders, and passport production and issuance facilities.\" Ibid. Congress’s decision to authorize a benefit for \"many of America’s closest allies,\" ibid., did not implicitly foreclose the Executive from imposing tighter restrictions on nationals of certain high-risk countries. The Visa Waiver Program creates a special exemption for citizens of countries that maintain exemplary security standards and offer \"reciprocal [travel] privileges\" to United States citizens. 8 U. S. C. §1187(a)(2)(A). But in establishing a select partnership covering less than 20% of the countries in the world, Congress did not address what requirements should govern the entry of nationals from the vast majority of countries that fall short of that gold standard— particularly those nations presenting heightened terrorism concerns. Nor did Congress attempt to determine—as the multi-agency review process did—whether those high-risk countries provide a minimum baseline of information to adequately vet their nationals. Once again, this is not a situation where \"Congress has stepped into the space and solved the exact problem.\" Tr. of Oral Arg. 53. Although plaintiffs claim that their reading preserves for the President a flexible power to \"supplement\" the INA, their understanding of the President’s authority is remarkably cramped: He may suspend entry by classes of aliens \"similar in nature\" to the existing categories of inadmissibility—but not too similar—or only in response to \"some exigent circumstance\" that Congress did not already touch on in the INA. Brief for Respondents 31, 36, 50; see also Tr. of Oral Arg. 57 (\"Presidents have wide berth in this area . . . if there’s any sort of emergency.\"). In any event, no Congress that wanted to confer on the President only a residual authority to address emergency situations would ever use language of the sort in §1182(f). Fairly read, the provision vests authority in the President to impose additional limitations on entry beyond the grounds for exclusion set forth in the INA—including in response to circumstances that might affect the vetting system or other \"interests of the United States.\" Because plaintiffs do not point to any contradiction with another provision of the INA, the President has not exceeded his authority under §1182(f). 2 Plaintiffs seek to locate additional limitations on the scope of §1182(f) in the statutory background and legislative history. Given the clarity of the text, we need not consider such extra-textual evidence. See State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, 580 U. S. ___, ___ (2016) (slip op., at 9). At any rate, plaintiffs’ evidence supports the plain meaning of the provision. Drawing on legislative debates over §1182(f), plaintiffs suggest that the President’s suspension power should be limited to exigencies where it would be difficult for Congress to react promptly. Precursor provisions enacted during the First and Second World Wars confined the President’s exclusion authority to times of \"war\" and \"national emergency.\" See Act of May 22, 1918, §1(a), 40 Stat. 559; Act of June 21, 1941, ch. 210, §1, 55 Stat. 252. When Congress enacted §1182(f) in 1952, plaintiffs note, it borrowed \"nearly verbatim\" from those predecessor statutes, and one of the bill’s sponsors affirmed that the provision would apply only during a time of crisis. According to plaintiffs, it therefore follows that Congress sought to delegate only a similarly tailored suspension power in §1182(f). Brief for Respondents 39–40. If anything, the drafting history suggests the opposite. In borrowing \"nearly verbatim\" from the pre-existing statute, Congress made one critical alteration—it removed the national emergency standard that plaintiffs now seek to reintroduce in another form. Weighing Congress’s conscious departure from its wartime statutes against an isolated floor statement, the departure is far more probative. See NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip op., at 16) (\"[F]loor statements by individual legislators rank among the least illuminating forms of legislative history.\"). When Congress wishes to condition an exercise of executive authority on the President’s finding of an exigency or crisis, it knows how to say just that. See, e.g., 16 U. S. C. §824o–1(b); 42 U. S. C. §5192; 50 U. S. C. §§1701, 1702. Here, Congress instead chose to condition the President’s exercise of the suspension authority on a different finding: that the entry of an alien or class of aliens would be \"detrimental to the interests of the United States.\" Plaintiffs also strive to infer limitations from executive practice. By their count, every previous suspension order under §1182(f) can be slotted into one of two categories. The vast majority targeted discrete groups of foreign nationals engaging in conduct \"deemed harmful by the immigration laws.\" And the remaining entry restrictions that focused on entire nationalities—namely, President Carter’s response to the Iran hostage crisis and President Reagan’s suspension of immigration from Cuba—were, in their view, designed as a response to diplomatic emergencies \"that the immigration laws do not address.\" Brief for Respondents 40–41. Even if we were willing to confine expansive language in light of its past applications, the historical evidence is more equivocal than plaintiffs acknowledge. Presidents have repeatedly suspended entry not because the covered nationals themselves engaged in harmful acts but instead to retaliate for conduct by their governments that conflicted with U. S. foreign policy interests. See, e.g., Exec. Order No. 13662, 3 CFR 233 (2014) (President Obama) (suspending entry of Russian nationals working in the financial services, energy, mining, engineering, or defense sectors, in light of the Russian Federation’s \"annexation of Crimea and its use of force in Ukraine\"); Presidential Proclamation No. 6958, 3 CFR 133 (1997) (President Clinton) (suspending entry of Sudanese governmental and military personnel, citing \"foreign policy interests of the United States\" based on Sudan’s refusal to comply with United Nations resolution). And while some of these reprisals were directed at subsets of aliens from the countries at issue, others broadly suspended entry on the basis of nationality due to ongoing diplomatic disputes. For example, President Reagan invoked §1182(f) to suspend entry \"as immigrants\" by almost all Cuban nationals, to apply pressure on the Cuban Government. Presidential Proclamation No. 5517, 3 CFR 102 (1986). Plaintiffs try to fit this latter order within their carve-out for emergency action, but the proclamation was based in part on Cuba’s decision to breach an immigration agreement some 15 months earlier. More significantly, plaintiffs’ argument about historical practice is a double-edged sword. The more ad hoc their account of executive action—to fit the history into their theory—the harder it becomes to see such a refined delegation in a statute that grants the President sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long. C Plaintiffs’ final statutory argument is that the President’s entry suspension violates §1152(a)(1)(A), which provides that \"no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.\" They contend that we should interpret the provision as prohibiting nationality-based discrimination throughout the entire immigration process, despite the reference in §1152(a)(1)(A) to the act of visa issuance alone. Specifically, plaintiffs argue that §1152(a)(1)(A) applies to the predicate question of a visa applicant’s eligibility for admission and the subsequent question whether the holder of a visa may in fact enter the country. Any other conclusion, they say, would allow the President to circumvent the protections against discrimination enshrined in §1152(a)(1)(A). As an initial matter, this argument challenges only the validity of the entry restrictions on immigrant travel. Section 1152(a)(1)(A) is expressly limited to the issuance of \"immigrant visa[s]\" while §1182(f) allows the President to suspend entry of \"immigrants or nonimmigrants.\" At a minimum, then, plaintiffs’ reading would not affect any of the limitations on nonimmigrant travel in the Proclamation. In any event, we reject plaintiffs’ interpretation because it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA.3 Section 1182 defines the pool of individuals who are admissible to the United States. Its restrictions come into play at two points in the process of gaining entry (or admission)4 into the United States. First, any alien who is inadmissible under §1182 (based on, for example, health risks, criminal history, or foreign policy consequences) is screened out as \"ineligible to receive a visa.\" 8 U. S. C. §1201(g). Second, even if a consular officer issues a visa, entry into the United States is not guaranteed. As every visa application explains, a visa does not entitle an alien to enter the United States \"if, upon arrival,\" an immigration officer determines that the applicant is \"inadmissible under this chapter, or any other provision of law\"— including §1182(f). §1201(h). Sections 1182(f) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility into the United States, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinction between admissibility—to which §1152(a)(1)(A) does not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that its protections apply to the \"issuance\" of \"immigrant visa[s],\" without mentioning admissibility or entry. Had Congress instead intended in §1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could easily have chosen language directed to that end. See, e.g., §§1182(a)(3)(C)(ii), (iii) (providing that certain aliens \"shall not be excludable or subject to restrictions or conditions on entry . . . because of the alien’s past, current, or expected beliefs, statements, or associations\" (emphasis added)). \"The fact that [Congress] did not adopt [a] readily available and apparent alternative strongly supports\" the conclusion that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f). Knight v. Commissioner, 552 U. S. 181, 188 (2008). Common sense and historical practice confirm as much. Section 1152(a)(1)(A) has never been treated as a constraint on the criteria for admissibility in §1182. Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality. As noted, President Reagan relied on §1182(f) to suspend entry \"as immigrants by all Cuban nationals,\" subject to exceptions. Proclamation No. 5517, 51 Fed. Reg. 30470 (1986). Likewise, President Carter invoked §1185(a)(1) to deny and revoke visas to all Iranian nationals. See Exec. Order No. 12172, 3 CFR 461 (1979), as amended by Exec. Order No. 12206, 3 CFR 249 (1980); Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, Vol. 1, Apr. 7, 1980, pp. 611–612 (1980); see also n. 1, supra. On plaintiffs’ reading, those orders were beyond the President’s authority. The entry restrictions in the Proclamation on North Korea (which plaintiffs do not challenge in this litigation) would also be unlawful. Nor would the President be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war. In a reprise of their §1182(f) argument, plaintiffs attempt to soften their position by falling back on an implicit exception for Presidential actions that are \"closely drawn\" to address \"specific fast-breaking exigencies.\" Brief for Respondents 60–61. Yet the absence of any textual basis for such an exception more likely indicates that Congress did not intend for §1152(a)(1)(A) to limit the President’s flexible authority to suspend entry based on foreign policy interests. In addition, plaintiffs’ proposed exigency test would require courts, rather than the President, to determine whether a foreign government’s conduct rises to the level that would trigger a supposed implicit exception to a federal statute. See Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 491 (1999) (explaining that even if the Executive \"disclose[d] its . . . reasons for deeming nationals of a particular country a special threat,\" courts would be \"unable to assess their adequacy\"). The text of §1152(a)(1)(A) offers no standards that would enable courts to assess, for example, whether the situation in North Korea justifies entry restrictions while the terrorist threat in Yemen does not. The Proclamation is squarely within the scope of Presidential authority under the INA. Indeed, neither dissent even attempts any serious argument to the contrary, despite the fact that plaintiffs’ primary contention below and in their briefing before this Court was that the Proclamation violated the statute. IV A We now turn to plaintiffs’ claim that the Proclamation was issued for the unconstitutional purpose of excluding Muslims. Because we have an obligation to assure ourselves of jurisdiction under Article III, we begin by addressing the question whether plaintiffs have standing to bring their constitutional challenge. Federal courts have authority under the Constitution to decide legal questions only in the course of resolving \"Cases\" or \"Controversies.\" Art. III, §2. One of the essential elements of a legal case or controversy is that the plaintiff have standing to sue. Standing requires more than just a \"keen interest in the issue.\" Hollingsworth v. Perry, 570 U. S. 693, 700 (2013). It requires allegations— and, eventually, proof—that the plaintiff \"personal[ly]\" suffered a concrete and particularized injury in connection with the conduct about which he complains. Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 7). In a case arising from an alleged violation of the Establishment Clause, a plaintiff must show, as in other cases, that he is \"directly affected by the laws and practices against which [his] complaints are directed.\" School Dist. of Abington Township v. Schempp, 374 U. S. 203, 224, n. 9 (1963). That is an issue here because the entry restrictions apply not to plaintiffs themselves but to others seeking to enter the United States. Plaintiffs first argue that they have standing on the ground that the Proclamation \"establishes a disfavored faith\" and violates \"their own right to be free from federal [religious] establishments.\" Brief for Respondents 27–28 (emphasis deleted). They describe such injury as \"spiritual and dignitary.\" Id., at 29. We need not decide whether the claimed dignitary interest establishes an adequate ground for standing. The three individual plaintiffs assert another, more concrete injury: the alleged real-world effect that the Proclamation has had in keeping them separated from certain relatives who seek to enter the country. See ibid.; Town of Chester v. Laroe Estates, Inc., 581 U. S. ___, ___–___ (2017) (slip op., at 5–6) (\"At least one plaintiff must have standing to seek each form of relief requested in the complaint.\"). We agree that a person’s interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III injury in fact. This Court has previously considered the merits of claims asserted by United States citizens regarding violations of their personal rights allegedly caused by the Government’s exclusion of particular foreign nationals. See Kerry v. Din, 576 U. S. ___, ___ (2015) (plurality opinion) (slip op., at 15); id., at ___ (KENNEDY, J., concurring in judgment) (slip op., at 1); Kleindienst v. Mandel, 408 U. S. 753, 762 (1972). Likewise, one of our prior stay orders in this litigation recognized that an American individual who has \"a bona fide relationship with a particular person seeking to enter the country . . . can legitimately claim concrete hardship if that person is excluded.\" Trump v. IRAP, 582 U. S., at ___ (slip op., at 13). The Government responds that plaintiffs’ Establishment Clause claims are not justiciable because the Clause does not give them a legally protected interest in the admission of particular foreign nationals. But that argument—which depends upon the scope of plaintiffs’ Establishment Clause rights—concerns the merits rather than the justiciability of plaintiffs’ claims. We therefore conclude that the individual plaintiffs have Article III standing to challenge the exclusion of their relatives under the Establishment Clause. B The First Amendment provides, in part, that \"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.\" Our cases recognize that \"[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.\" Larson v. Valente, 456 U. S. 228, 244 (1982). Plaintiffs believe that the Proclamation violates this prohibition by singling out Muslims for disfavored treatment. The entry suspension, they contend, operates as a \"religious gerrymander,\" in part because most of the countries covered by the Proclamation have Muslim-majority populations. And in their view, deviations from the information-sharing baseline criteria suggest that the results of the multi-agency review \"foreordained.\" Relying on Establishment Clause precedents concerning laws and policies applied domestically, plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims. Brief for Respondents 69–73. At the heart of plaintiffs’ case is a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation. For example, while a candidate on the campaign trail, the President published a \"Statement on Preventing Muslim Immigration\" that called for a \"total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.\" App. 158. That statement remained on his campaign website until May 2017. Id., at 130–131. Then-candidate Trump also stated that \"Islam hates us\" and asserted that the United States was \"having problems with Muslims coming into the country.\" Id., at 120–121, 159. Shortly after being elected, when asked whether violence in Europe had affected his plans to \"ban Muslim immigration,\" the President replied, \"You know my plans. All along, I’ve been proven to be right.\" Id., at 123. One week after his inauguration, the President issued EO–1. In a television interview, one of the President’s campaign advisers explained that when the President \"first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’\" Id., at 125. The adviser said he assembled a group of Members of Congress and lawyers that \"focused on, instead of religion, danger. . . . [The order] is based on places where there [is] substantial evidence that people are sending terrorists into our country.\" Id., at 229. Plaintiffs also note that after issuing EO–2 to replace EO–1, the President expressed regret that his prior order had been \"watered down\" and called for a \"much tougher version\" of his \"Travel Ban.\" Shortly before the release of the Proclamation, he stated that the \"travel ban . . . should be far larger, tougher, and more specific,\" but \"stupidly that would not be politically correct.\" Id., at 132–133. More recently, on November 29, 2017, the President retweeted links to three anti-Muslim propaganda videos. In response to questions about those videos, the President’s deputy press secretary denied that the President thinks Muslims are a threat to the United States, explaining that \"the President has been talking about these security issues for years now, from the campaign trail to the White House\" and \"has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.\" IRAP v. Trump, 883 F. 3d 233, 267 (CA4 2018). The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf. Our Presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this Nation was founded. In 1790 George Washington reassured the Hebrew Congregation of Newport, Rhode Island that \"happily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance [and] requires only that they who live under its protection should demean themselves as good citizens.\" 6 Papers of George Washington 285 (D. Twohig ed. 1996). President Eisenhower, at the opening of the Islamic Center of Washington, similarly pledged to a Muslim audience that \"America would fight with her whole strength for your right to have here your own church,\" declaring that \"[t]his concept is indeed a part of America.\" Public Papers of the Presidents, Dwight D. Eisenhower, June 28, 1957, p. 509 (1957). And just days after the attacks of September 11, 2001, President George W. Bush returned to the same Islamic Center to implore his fellow Americans—Muslims and non-Muslims alike— to remember during their time of grief that \"[t]he face of terror is not the true faith of Islam,\" and that America is \"a great country because we share the same values of respect and dignity and human worth.\" Public Papers of the Presidents, George W. Bush, Vol. 2, Sept. 17, 2001, p. 1121 (2001). Yet it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days— performed unevenly in living up to those inspiring words. Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself. The case before us differs in numerous respects from the conventional Establishment Clause claim. Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad. Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof. The Proclamation, moreover, is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office. These various aspects of plaintiffs’ challenge inform our standard of review. C For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a \"fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.\" Fiallo v. Bell, 430 U. S. 787, 792 (1977); see Harisiades v. Shaughnessy, 342 U. S. 580, 588–589 (1952) (\"[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations [and] the war power.\"). Because decisions in these matters may implicate \"relations with foreign powers,\" or involve \"classifications defined in the light of changing political and economic circumstances,\" such judgments \"are frequently of a character more appropriate to either the Legislature or the Executive.\" Mathews v. Diaz, 426 U. S. 67, 81 (1976). Nonetheless, although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen. In Kleindienst v. Mandel, the Attorney General denied admission to a Belgian journalist and self-described \"revolutionary Marxist,\" Ernest Mandel, who had been invited to speak at a conference at Stanford University. 408 U. S., at 756–757. The professors who wished to hear Mandel speak challenged that decision under the First Amendment, and we acknowledged that their constitutional \"right to receive information\" was implicated. Id., at 764–765. But we limited our review to whether the Executive gave a \"facially legitimate and bona fide\" reason for its action. Id., at 769. Given the authority of the political branches over admission, we held that \"when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification\" against the asserted constitutional interests of U. S. citizens. Id., at 770. The principal dissent suggests that Mandel has no bearing on this case, post, at 14, and n. 5 (opinion of SOTOMAYOR, J.) (hereinafter the dissent), but our opinions have reaffirmed and applied its deferential standard of review across different contexts and constitutional claims. In Din, JUSTICE KENNEDY reiterated that \"respect for the political branches’ broad power over the creation and administration of the immigration system\" meant that the Government need provide only a statutory citation to explain a visa denial. 576 U. S., at ___ (opinion concurring in judgment) (slip op., at 6). Likewise in Fiallo, we applied Mandel to a \"broad congressional policy\" giving immigration preferences to mothers of illegitimate children. 430 U. S., at 795. Even though the statute created a \"categorical\" entry classification that discriminated on the basis of sex and legitimacy, post, at 14, n. 5, the Court concluded that \"it is not the judicial role in cases of this sort to probe and test the justifications\" of immigration policies. 430 U. S., at 799 (citing Mandel, 408 U. S., at 770). Lower courts have similarly applied Mandel to broad executive action. See Rajah v. Mukasey, 544 F. 3d 427, 433, 438– 439 (CA2 2008) (upholding National Security Entry-Exit Registration System instituted after September 11, 2001). Mandel’s narrow standard of review \"has particular force\" in admission and immigration cases that overlap with \"the area of national security.\" Din, 576 U. S., at ___ (KENNEDY, J., concurring in judgment) (slip op., at 3). For one, \"[j]udicial inquiry into the national-security realm raises concerns for the separation of powers\" by intruding on the President’s constitutional responsibilities in the area of foreign affairs. Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) (slip op., at 19) (internal quotation marks omitted). For another, \"when it comes to collecting evidence and drawing inferences\" on questions of national security, \"the lack of competence on the part of the courts is marked.\" Humanitarian Law Project, 561 U. S., at 34. The upshot of our cases in this context is clear: \"Any rule of constitutional law that would inhibit the flexibility\" of the President \"to respond to changing world conditions should be adopted only with the greatest caution,\" and our inquiry into matters of entry and national security is highly constrained. Mathews, 426 U. S., at 81–82. We need not define the precise contours of that inquiry in this case. A conventional application of Mandel, asking only whether the policy is facially legitimate and bona fide, would put an end to our review. But the Government has suggested that it may be appropriate here for the inquiry to extend beyond the facial neutrality of the order. See Tr. of Oral Arg. 16–17, 25–27 (describing Mandel as \"the starting point\" of the analysis). For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review. That standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980). As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. D Given the standard of review, it should come as no surprise that the Court hardly ever strikes down a policy as illegitimate under rational basis scrutiny. On the few occasions where we have done so, a common thread has been that the laws at issue lack any purpose other than a \"bare . . . desire to harm a politically unpopular group.\" Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973). In one case, we invalidated a local zoning ordinance that required a special permit for group homes for the intellectually disabled, but not for other facilities such as fraternity houses or hospitals. We did so on the ground that the city’s stated concerns about (among other things) \"legal responsibility\" and \"crowded conditions\" rested on \"an irrational prejudice\" against the intellectually disabled. Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448–450 (1985) (internal quotation marks omitted). And in another case, this Court overturned a state constitutional amendment that denied gays and lesbians access to the protection of antidiscrimination laws. The amendment, we held, was \"divorced from any factual context from which we could discern a relationship to legitimate state interests,\" and \"its sheer breadth [was] so discontinuous with the reasons offered for it\" that the initiative seemed \"inexplicable by anything but animus.\" Romer v. Evans, 517 U. S. 620, 632, 635 (1996). The Proclamation does not fit this pattern. It cannot be said that it is impossible to \"discern a relationship to legitimate state interests\" or that the policy is \"inexplicable by anything but animus.\" Indeed, the dissent can only attempt to argue otherwise by refusing to apply anything resembling rational basis review. But because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification. The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion. Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks. See 8 U. S. C. §1187(a)(12)(A) (identifying Syria and state sponsors of terrorism such as Iran as \"countr[ies] or area[s] of concern\" for purposes of administering the Visa Waiver Program); Dept. of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016) (designating Libya, Somalia, and Yemen as additional countries of concern); see also Rajah, 544 F. 3d, at 433, n. 3 (describing how nonimmigrant aliens from Iran, Libya, Somalia, Syria, and Yemen were covered by the National Security Entry-Exit Registration System). The Proclamation, moreover, reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies. Plaintiffs seek to discredit the findings of the review, pointing to deviations from the review’s baseline criteria resulting in the inclusion of Somalia and omission of Iraq. But as the Proclamation explains, in each case the determinations were justified by the distinct conditions in each country. Although Somalia generally satisfies the information-sharing component of the baseline criteria, it \"stands apart . . . in the degree to which [it] lacks command and control of its territory.\" Proclamation §2(h)(i). As for Iraq, the Secretary of Homeland Security determined that entry restrictions were not warranted in light of the close cooperative relationship between the U. S. and Iraqi Governments and the country’s key role in combating terrorism in the region. §1(g). It is, in any event, difficult to see how exempting one of the largest predominantly Muslim countries in the region from coverage under the Proclamation can be cited as evidence of animus toward Muslims. The dissent likewise doubts the thoroughness of the multi-agency review because a recent Freedom of Information Act request shows that the final DHS report \"was a mere 17 pages.\" Post, at 19. Yet a simple page count offers little insight into the actual substance of the final report, much less pre-decisional materials underlying it. See 5 U. S. C. §552(b)(5) (exempting deliberative materials from FOIA disclosure). More fundamentally, plaintiffs and the dissent challenge the entry suspension based on their perception of its effectiveness and wisdom. They suggest that the policy is overbroad and does little to serve national security interests. But we cannot substitute our own assessment for the Executive’s predictive judgments on such matters, all of which \"are delicate, complex, and involve large elements of prophecy.\" Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948); see also Regan v. Wald, 468 U. S. 222, 242–243 (1984) (declining invitation to conduct an \"independent foreign policy analysis\"). While we of course \"do not defer to the Government’s reading of the First Amendment,\" the Executive’s evaluation of the underlying facts is entitled to appropriate weight, particularly in the context of litigation involving \"sensitive and weighty interests of national security and foreign affairs.\" Humanitarian Law Project, 561 U. S., at 33–34.6 Three additional features of the entry policy support the Government’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list of covered countries. The Proclamation emphasizes that its \"conditional restrictions\" will remain in force only so long as necessary to \"address\" the identified \"inadequacies and risks,\" Proclamation Preamble, and §1(h), and establishes an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions should be terminated, §§4(a), (b). In fact, in announcing the termination of restrictions on nationals of Chad, the President also described Libya’s ongoing engagement with the State Department and the steps Libya is taking \"to improve its practices.\" Proclamation No. 9723, 83 Fed. Reg. 15939. Second, for those countries that remain subject to entry restrictions, the Proclamation includes significant exceptions for various categories of foreign nationals. The policy permits nationals from nearly every covered country to travel to the United States on a variety of nonimmigrant visas. See, e.g., §§2(b)–(c), (g), (h) (permitting student and exchange visitors from Iran, while restricting only business and tourist nonimmigrant entry for nationals of Libya and Yemen, and imposing no restrictions on nonimmigrant entry for Somali nationals). These carveouts for nonimmigrant visas are substantial: Over the last three fiscal years—before the Proclamation was in effect— the majority of visas issued to nationals from the covered countries were nonimmigrant visas. Brief for Petitioners 57. The Proclamation also exempts permanent residents and individuals who have been granted asylum. §§3(b)(i), (vi). Third, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. According to the Proclamation, consular officers are to consider in each admissibility determination whether the alien demonstrates that (1) denying entry would cause undue hardship; (2) entry would not pose a threat to public safety; and (3) entry would be in the interest of the United States. §3(c)(i); see also §3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations). On its face, this program is similar to the humanitarian exceptions set forth in President Carter’s order during the Iran hostage crisis. See Exec. Order No. 12206, 3 CFR 249; Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, at 611–612 (1980) (outlining exceptions). The Proclamation also directs DHS and the State Department to issue guidance elaborating upon the circumstances that would justify a waiver. Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. See post, at 26–28. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—\"has no place in law under the Constitution.\" 323 U. S., at 248 (Jackson, J., dissenting). Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim. V Because plaintiffs have not shown that they are likely to succeed on the merits of their claims, we reverse the grant of the preliminary injunction as an abuse of discretion. Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 32 (2008). The case now returns to the lower courts for such further proceedings as may be appropriate. Our disposition of the case makes it unnecessary to consider the propriety of the nationwide scope of the injunction issued by the District Court. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."},
{"docket_number": "17-494", "syllabus": "South Dakota, like many States, taxes the retail sales of goods and services in the State. Sellers are required to collect and remit the tax to the State, but if they do not then in-state consumers are responsible for paying a use tax at the same rate. Under National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753, and Quill Corp. v. North Dakota, 504 U. S. 298, South Dakota may not require a business that has no physical presence in the State to collect its sales tax. Consumer compliance rates are notoriously low, however, and it is estimated that Bellas Hess and Quill cause South Dakota to lose between $48 and $58 million annually. Concerned about the erosion of its sales tax base and corresponding loss of critical funding for state and local services, the South Dakota Legislature enacted a law requiring out-of-state sellers to collect and remit sales tax \"as if the seller had a physical presence in the State.\" The Act covers only sellers that, on an annual basis, deliver more than $100,000 of goods or services into the State or engage in 200 or more separate transactions for the delivery of goods or services into the State. Respondents, top online retailers with no employees or real estate in South Dakota, each meet the Act’s minimum sales or transactions requirement, but do not collect the State’s sales tax. South Dakota filed suit in state court, seeking a declaration that the Act’s requirements are valid and applicable to respondents and an injunction requiring respondents to register for licenses to collect and remit the sales tax. Respondents sought summary judgment, arguing that the Act is unconstitutional. The trial court granted their motion. The State Supreme Court affirmed on the ground that Quill is controlling precedent. Held: Because the physical presence rule of Quill is unsound and incorrect, Quill Corp. v. North Dakota, 504 U. S. 298, and National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753, are overruled. Pp. 5–24. (a) An understanding of this Court’s Commerce Clause principles and their application to state taxes is instructive here. Pp. 5–9. (1) Two primary principles mark the boundaries of a State’s authority to regulate interstate commerce: State regulations may not discriminate against interstate commerce; and States may not impose undue burdens on interstate commerce. These principles guide the courts in adjudicating challenges to state laws under the Commerce Clause. Pp. 5–7. (2) They also animate Commerce Clause precedents addressing the validity of state taxes, which will be sustained so long as they (1) apply to an activity with a substantial nexus with the taxing State, (2) are fairly apportioned, (3) do not discriminate against interstate commerce, and (4) are fairly related to the services the State provides. See Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 279. Before Complete Auto, the Court held in Bellas Hess that a \"seller whose only connection with customers in the State is by common carrier or . . . mail\" lacked the requisite minimum contacts with the State required by the Due Process Clause and the Commerce Clause, and that unless the retailer maintained a physical presence in the State, the State lacked the power to require that retailer to collect a local tax. 386 U. S., at 758. In Quill, the Court overruled the due process holding, but not the Commerce Clause holding, grounding the physical presence rule in Complete Auto’s requirement that a tax have a \"substantial nexus\" with the activity being taxed. Pp. 7–9. (b) The physical presence rule has long been criticized as giving out-of-state sellers an advantage. Each year, it becomes further removed from economic reality and results in significant revenue losses to the States. These critiques underscore that the rule, both as first formulated and as applied today, is an incorrect interpretation of the Commerce Clause. Pp. 9–17. (1) Quill is flawed on its own terms. First, the physical presence rule is not a necessary interpretation of Complete Auto’s nexus requirement. That requirement is \"closely related,\" Bellas Hess, 386 U. S. at 756, to the due process requirement that there be \"some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.\" Miller Brothers Co. v. Maryland, 347 U. S. 340, 344–345. And, as Quill itself recognized, a business need not have a physical presence in a State to satisfy the demands of due process. When considering whether a State may levy a tax, Due Process and Commerce Clause standards, though not identical or coterminous, have significant parallels. The reasons given in Quill for rejecting the physical presence rule for due process purposes apply as well to the question whether physical presence is a requisite for an out-of-state seller’s liability to remit sales taxes. Other aspects of the Court’s doctrine can better and more accurately address potential burdens on interstate commerce, whether or not Quill’s physical presence rule is satisfied. Second, Quill creates rather than resolves market distortions. In effect, it is a judicially created tax shelter for businesses that limit their physical presence in a State but sell their goods and services to the State’s consumers, something that has become easier and more prevalent as technology has advanced. The rule also produces an incentive to avoid physical presence in multiple States, affecting development that might be efficient or desirable. Third, Quill imposes the sort of arbitrary, formalistic distinction that the Court’s modern Commerce Clause precedents disavow in favor of \"a sensitive, case-by-case analysis of purposes and effects,\" West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 201. It treats economically identical actors differently for arbitrary reasons. For example, a business that maintains a few items of inventory in a small warehouse in a State is required to collect and remit a tax on all of its sales in the State, while a seller with a pervasive Internet presence cannot be subject to the same tax for the sales of the same items. Pp. 10–14. (2) When the day-to-day functions of marketing and distribution in the modern economy are considered, it becomes evident that Quill’s physical presence rule is artificial, not just \"at its edges,\" 504 U. S. at 315, but in its entirety. Modern e-commerce does not align analytically with a test that relies on the sort of physical presence defined in Quill. And the Court should not maintain a rule that ignores substantial virtual connections to the State. Pp. 14–15. (3) The physical presence rule of Bellas Hess and Quill is also an extraordinary imposition by the Judiciary on States’ authority to collect taxes and perform critical public functions. Forty-one States, two Territories, and the District of Columbia have asked the Court to reject Quill’s test. Helping respondents’ customers evade a lawful tax unfairly shifts an increased share of the taxes to those consumers who buy from competitors with a physical presence in the State. It is essential to public confidence in the tax system that the Court avoid creating inequitable exceptions. And it is also essential to the confidence placed in the Court’s Commerce Clause decisions. By giving some online retailers an arbitrary advantage over their competitors who collect state sales taxes, Quill’s physical presence rule has limited States’ ability to seek long-term prosperity and has prevented market participants from competing on an even playing field. Pp. 16–17. (c) Stare decisis can no longer support the Court’s prohibition of a valid exercise of the States’ sovereign power. If it becomes apparent that the Court’s Commerce Clause decisions prohibit the States from exercising their lawful sovereign powers, the Court should be vigilant in correcting the error. It is inconsistent with this Court’s proper role to ask Congress to address a false constitutional premise of this Court’s own creation. The Internet revolution has made Quill’s original error all the more egregious and harmful. The Quill Court did not have before it the present realities of the interstate marketplace, where the Internet’s prevalence and power have changed the dynamics of the national economy. The expansion of e-commerce has also increased the revenue shortfall faced by States seeking to collect their sales and use taxes, leading the South Dakota Legislature to declare an emergency. The argument, moreover, that the physical presence rule is clear and easy to apply is unsound, as attempts to apply the physical presence rule to online retail sales have proved unworkable. Because the physical presence rule as defined by Quill is no longer a clear or easily applicable standard, arguments for reliance based on its clarity are misplaced. Stare decisis may accommodate \"legitimate reliance interest[s],\" United States v. Ross, 456 U. S. 798, 824, but a business \"is in no position to found a constitutional right . . . on the practical opportunities for tax avoidance,\" Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 366. Startups and small businesses may benefit from the physical presence rule, but here South Dakota affords small merchants a reasonable degree of protection. Finally, other aspects of the Court’s Commerce Clause doctrine can protect against any undue burden on interstate commerce, taking into consideration the small businesses, startups, or others who engage in commerce across state lines. The potential for such issues to arise in some later case cannot justify retaining an artificial, anachronistic rule that deprives States of vast revenues from major businesses. Pp. 17–22. (d) In the absence of Quill and Bellas Hess, the first prong of the Complete Auto test simply asks whether the tax applies to an activity with a substantial nexus with the taxing State, 430 U. S., at 279. Here, the nexus is clearly sufficient. The Act applies only to sellers who engage in a significant quantity of business in the State, and respondents are large, national companies that undoubtedly maintain an extensive virtual presence. Any remaining claims regarding the Commerce Clause’s application in the absence of Quill and Bellas Hess may be addressed in the first instance on remand. Pp. 22–23. 2017 S.D. 56, 901 N. W. 2d 754, vacated and remanded.", "opinion": "When a consumer purchases goods or services, the consumer’s State often imposes a sales tax. This case requires the Court to determine when an out-of-state seller can be required to collect and remit that tax. All concede that taxing the sales in question here is lawful. The question is whether the out-of-state seller can be held responsible for its payment, and this turns on a proper interpretation of the Commerce Clause, U. S. Const., Art. I, §8, cl. 3. In two earlier cases the Court held that an out-of-state seller’s liability to collect and remit the tax to the consumer’s State depended on whether the seller had a physical presence in that State, but that mere shipment of goods into the consumer’s State, following an order from a catalog, did not satisfy the physical presence requirement. National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967); Quill Corp. v. North Dakota, 504 U. S. 298 (1992). The Court granted certiorari here to reconsider the scope and validity of the physical presence rule mandated by those cases. I Like most States, South Dakota has a sales tax. It taxes the retail sales of goods and services in the State. S. D. Codified Laws §§10–45–2, 10–45–4 (2010 and Supp. 2017). Sellers are generally required to collect and remit this tax to the Department of Revenue. §10–45–27.3. If for some reason the sales tax is not remitted by the seller, then instate consumers are separately responsible for paying a use tax at the same rate. See §§10–46–2, 10–46–4, 10–46– 6. Many States employ this kind of complementary sales and use tax regime. Under this Court’s decisions in Bellas Hess and Quill, South Dakota may not require a business to collect its sales tax if the business lacks a physical presence in the State. Without that physical presence, South Dakota instead must rely on its residents to pay the use tax owed on their purchases from out-of-state sellers. \"[T]he impracticability of [this] collection from the multitude of individual purchasers is obvious.\" National Geographic Soc. v. California Bd. of Equalization, 430 U. S. 551, 555 (1977). And consumer compliance rates are notoriously low. See, e.g., GAO, Report to Congressional Requesters: Sales Taxes, States Could Gain Revenue from Expanded Authority, but Businesses Are Likely to Experience Compliance Costs 5 (GAO–18–114, Nov. 2017) (Sales Taxes Report); California State Bd. of Equalization, Revenue Estimate: Electronic Commerce and Mail Order Sales 7 (2013) (Table 3) (estimating a 4 percent collection rate). It is estimated that Bellas Hess and Quill cause the States to lose between $8 and $33 billion every year. See Sales Taxes Report, at 11–12 (estimating $8 to $13 billion); Brief for Petitioner 34–35 (citing estimates of $23 and $33.9 billion). In South Dakota alone, the Department of Revenue estimates revenue loss at $48 to $58 million annually. App. 24. Particularly because South Dakota has no state income tax, it must put substantial reliance on its sales and use taxes for the revenue necessary to fund essential services. Those taxes account for over 60 percent of its general fund. In 2016, South Dakota confronted the serious inequity Quill imposes by enacting S. 106—\"An Act to provide for the collection of sales taxes from certain remote sellers, to establish certain Legislative findings, and to declare an emergency.\" S. 106, 2016 Leg. Assembly, 91st Sess. (S. D. 2016) (S. B. 106). The legislature found that the inability to collect sales tax from remote sellers was \"seriously eroding the sales tax base\" and \"causing revenue losses and imminent harm . . . through the loss of critical funding for state and local services.\" §8(1). The legislature also declared an emergency: \"Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist.\" §9. Fearing further erosion of the tax base, the legislature expressed its intention to \"apply South Dakota’s sales and use tax obligations to the limit of federal and state constitutional doctrines\" and noted the urgent need for this Court to reconsider its precedents. §§8(11), (8). To that end, the Act requires out-of-state sellers to collect and remit sales tax \"as if the seller had a physical presence in the state.\" §1. The Act applies only to sellers that, on an annual basis, deliver more than $100,000 of goods or services into the State or engage in 200 or more separate transactions for the delivery of goods or services into the State. Ibid. The Act also forecloses the retroactive application of this requirement and provides means for the Act to be appropriately stayed until the constitutionality of the law has been clearly established. §§5, 3, 8(10). Respondents Wayfair, Inc., Overstock.com, Inc., and Newegg, Inc., are merchants with no employees or real estate in South Dakota. Wayfair, Inc., is a leading online retailer of home goods and furniture and had net revenues of over $4.7 billion last year. Overstock.com, Inc., is one of the top online retailers in the United States, selling a wide variety of products from home goods and furniture to clothing and jewelry; and it had net revenues of over $1.7 billion last year. Newegg, Inc., is a major online retailer of consumer electronics in the United States. Each of these three companies ships its goods directly to purchasers throughout the United States, including South Dakota. Each easily meets the minimum sales or transactions requirement of the Act, but none collects South Dakota sales tax. 2017 S. D. 56, ¶¶ 10–11, 901 N. W. 2d 754, 759– 760. Pursuant to the Act’s provisions for expeditious judicial review, South Dakota filed a declaratory judgment action against respondents in state court, seeking a declaration that the requirements of the Act are valid and applicable to respondents and an injunction requiring respondents to register for licenses to collect and remit sales tax. App. 11, 30. Respondents moved for summary judgment, arguing that the Act is unconstitutional. 901 N. W. 2d, at 759– 760. South Dakota conceded that the Act cannot survive under Bellas Hess and Quill but asserted the importance, indeed the necessity, of asking this Court to review those earlier decisions in light of current economic realities. 901 N. W. 2d, at 760; see also S. B. 106, §8. The trial court granted summary judgment to respondents. App. to Pet. for Cert. 17a. The South Dakota Supreme Court affirmed. It stated: \"However persuasive the State’s arguments on the merits of revisiting the issue, Quill has not been overruled [and] remains the controlling precedent on the issue of Commerce Clause limitations on interstate collection of sales and use taxes.\" 901 N. W. 2d, at 761. This Court granted certiorari. 583 U. S. ___ (2018). II The Constitution grants Congress the power \"[t]o regulate Commerce . . . among the several States.\" Art. I, §8, cl. 3. The Commerce Clause \"reflect[s] a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.\" Hughes v. Oklahoma, 441 U. S. 322, 325–326 (1979). Although the Commerce Clause is written as an affirmative grant of authority to Congress, this Court has long held that in some instances it imposes limitations on the States absent congressional action. Of course, when Congress exercises its power to regulate commerce by enacting legislation, the legislation controls. Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 769 (1945). But this Court has observed that \"in general Congress has left it to the courts to formulate the rules\" to preserve \"the free flow of interstate commerce.\" Id., at 770. To understand the issue presented in this case, it is instructive first to survey the general development of this Court’s Commerce Clause principles and then to review the application of those principles to state taxes. A From early in its history, a central function of this Court has been to adjudicate disputes that require interpretation of the Commerce Clause in order to determine its meaning, its reach, and the extent to which it limits state regulations of commerce. Gibbons v. Ogden, 9 Wheat. 1 (1824), began setting the course by defining the meaning of commerce. Chief Justice Marshall explained that commerce included both \"the interchange of commodities\" and \"commercial intercourse.\" Id., at 189, 193. A concurring opin¬ion further stated that Congress had the exclusive power to regulate commerce. See id., at 236 (opinion of Johnson, J.). Had that latter submission prevailed and States been denied the power of concurrent regulation, history might have seen sweeping federal regulations at an early date that foreclosed the States from experimentation with laws and policies of their own, or, on the other hand, proposals to reexamine Gibbons’ broad definition of commerce to accommodate the necessity of allowing States the power to enact laws to implement the political will of their people. Just five years after Gibbons, however, in another opinion by Chief Justice Marshall, the Court sustained what in substance was a state regulation of interstate commerce. In Willson v. Black Bird Creek Marsh Co., 2 Pet. 245 (1829), the Court allowed a State to dam and bank a stream that was part of an interstate water system, an action that likely would have been an impermissible intrusion on the national power over commerce had it been the rule that only Congress could regulate in that sphere. See id., at 252. Thus, by implication at least, the Court indicated that the power to regulate commerce in some circumstances was held by the States and Congress concurrently. And so both a broad interpretation of interstate commerce and the concurrent regulatory power of the States can be traced to Gibbons and Willson. Over the next few decades, the Court refined the doctrine to accommodate the necessary balance between state and federal power. In Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1852), the Court addressed local laws regulating river pilots who operated in interstate waters and guided many ships on interstate or foreign voyages. The Court held that, while Congress surely could regulate on this subject had it chosen to act, the State, too, could regulate. The Court distinguished between those subjects that by their nature \"imperatively deman[d] a single uniform rule, operating equally on the commerce of the United States,\" and those that \"deman[d] th[e] diversity, which alone can meet . . . local necessities.\" Id., at 319. Though considerable uncertainties were yet to be overcome, these precedents still laid the groundwork for the analytical framework that now prevails for Commerce Clause cases. This Court’s doctrine has developed further with time. Modern precedents rest upon two primary principles that mark the boundaries of a State’s authority to regulate interstate commerce. First, state regulations may not discriminate against interstate commerce; and second, States may not impose undue burdens on interstate commerce. State laws that discriminate against interstate commerce face \"a virtually per se rule of invalidity.\" Granholm v. Heald, 544 U. S. 460, 476 (2005) (internal quotation marks omitted). State laws that \"regulat[e] even-handedly to effectuate a legitimate local public interest . . . will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.\" Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970); see also Southern Pacific, supra, at 779. Although subject to exceptions and variations, see, e.g., Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976); Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573 (1986), these two principles guide the courts in adjudicating cases challenging state laws under the Commerce Clause. B These principles also animate the Court’s Commerce Clause precedents addressing the validity of state taxes. The Court explained the now-accepted framework for state taxation in Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977). The Court held that a State \"may tax exclusively interstate commerce so long as the tax does not create any effect forbidden by the Commerce Clause.\" Id., at 285. After all, \"interstate commerce may be required to pay its fair share of state taxes.\" D. H. Holmes Co. v. McNamara, 486 U. S. 24, 31 (1988). The Court will sustain a tax so long as it (1) applies to an activity with a substantial nexus with the taxing State, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to the services the State provides. See Complete Auto, supra, at 279. Before Complete Auto, the Court had addressed a challenge to an Illinois tax that required out-of-state retailers to collect and remit taxes on sales made to consumers who purchased goods for use within Illinois. Bellas Hess, 386 U. S., at 754–755. The Court held that a mail-order company \"whose only connection with customers in the State is by common carrier or the United States mail\" lacked the requisite minimum contacts with the State required by both the Due Process Clause and the Commerce Clause. Id., at 758. Unless the retailer maintained a physical presence such as \"retail outlets, solicitors, or property within a State,\" the State lacked the power to require that retailer to collect a local use tax. Ibid. The dissent disagreed: \"There should be no doubt that this large-scale, systematic, continuous solicitation and exploitation of the Illinois consumer market is a sufficient ‘nexus’ to require Bellas Hess to collect from Illinois customers and to remit the use tax.\" Id., at 761–762 (opinion of Fortas, J., joined by Black and Douglas, JJ.). In 1992, the Court reexamined the physical presence rule in Quill. That case presented a challenge to North Dakota’s \"attempt to require an out-of-state mail-order house that has neither outlets nor sales representatives in the State to collect and pay a use tax on goods purchased for use within the State.\" 504 U. S., at 301. Despite the fact that Bellas Hess linked due process and the Commerce Clause together, the Court in Quill overruled the due process holding, but not the Commerce Clause holding; and it thus reaffirmed the physical presence rule. 504 U. S., at 307–308, 317–318. The Court in Quill recognized that intervening precedents, specifically Complete Auto, \"might not dictate the same result were the issue to arise for the first time today.\" 504 U. S., at 311. But, nevertheless, the Quill majority concluded that the physical presence rule was necessary to prevent undue burdens on interstate commerce. Id., at 313, and n. 6. It grounded the physical presence rule in Complete Auto’s requirement that a tax have a \"‘substantial nexus’\" with the activity being taxed. 504 U. S., at 311. Three Justices based their decision to uphold the physical presence rule on stare decisis alone. Id., at 320 (Scalia, J., joined by KENNEDY and THOMAS, JJ., concurring in part and concurring in judgment). Dissenting in relevant part, Justice White argued that \"there is no relationship between the physical-presence/nexus rule the Court retains and Commerce Clause considerations that allegedly justify it.\" Id., at 327 (opinion concurring in part and dissenting in part). III The physical presence rule has \"been the target of criticism over many years from many quarters.\" Direct Marketing Assn. v. Brohl, 814 F. 3d 1129, 1148, 1150–1151 (CA10 2016) (Gorsuch, J., concurring). Quill, it has been said, was \"premised on assumptions that are unfounded\" and \"riddled with internal inconsistencies.\" Rothfeld, Quill: Confusing the Commerce Clause, 56 Tax Notes 487, 488 (1992). Quill created an inefficient \"online sales tax loophole\" that gives out-of-state businesses an advantage. A. Laffer & D. Arduin, Pro-Growth Tax Reform and EFairness 1, 4 (July 2013). And \"while nexus rules are clearly necessary,\" the Court \"should focus on rules that are appropriate to the twenty-first century, not the nineteenth.\" Hellerstein, Deconstructing the Debate Over State Taxation of Electronic Commerce, 13 Harv. J. L. & Tech. 549, 553 (2000). Each year, the physical presence rule becomes further removed from economic reality and results in significant revenue losses to the States. These critiques underscore that the physical presence rule, both as first formulated and as applied today, is an incorrect interpretation of the Commerce Clause. A Quill is flawed on its own terms. First, the physical presence rule is not a necessary interpretation of the requirement that a state tax must be \"applied to an activity with a substantial nexus with the taxing State.\" Complete Auto, 430 U. S., at 279. Second, Quill creates rather than resolves market distortions. And third, Quill imposes the sort of arbitrary, formalistic distinction that the Court’s modern Commerce Clause precedents disavow. 1 All agree that South Dakota has the authority to tax these transactions. S. B. 106 applies to sales of \"tangible personal property, products transferred electronically, or services for delivery into South Dakota.\" §1 (emphasis added). \"It has long been settled\" that the sale of goods or services \"has a sufficient nexus to the State in which the sale is consummated to be treated as a local transaction taxable by that State.\" Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U. S. 175, 184 (1995); see also 2 C. Trost & P. Hartman, Federal Limitations on State and Local Taxation 2d §11:1, p. 471 (2003) (\"Generally speaking, a sale is attributable to its destination\"). The central dispute is whether South Dakota may require remote sellers to collect and remit the tax without some additional connection to the State. The Court has previously stated that \"[t]he imposition on the seller of the duty to insure collection of the tax from the purchaser does not violate the [C]ommerce [C]lause.\" McGoldrick v. Berwind-White Coal Mining Co., 309 U. S. 33, 50, n. 9 (1940). It is a \"‘familiar and sanctioned device.’\" Scripto, Inc. v. Carson, 362 U. S. 207, 212 (1960). There just must be \"a substantial nexus with the taxing State.\" Complete Auto, supra, at 279. This nexus requirement is \"closely related,\" Bellas Hess, 386 U. S., at 756, to the due process requirement that there be \"some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax,\" Miller Brothers Co. v. Maryland, 347 U. S. 340, 344–345 (1954). It is settled law that a business need not have a physical presence in a State to satisfy the demands of due process. Burger King Corp. v. Rudzewicz, 471 U. S. 462, 476 (1985). Although physical presence \"‘frequently will enhance’\" a business’ connection with a State, \"‘it is an inescapable fact of modern commercial life that a substantial amount of business is transacted . . . [with no] need for physical presence within a State in which business is conducted.’\" Quill, 504 U. S., at 308. Quill itself recognized that \"[t]he requirements of due process are met irrespective of a corporation’s lack of physical presence in the taxing State.\" Ibid. When considering whether a State may levy a tax, Due Process and Commerce Clause standards may not be identical or coterminous, but there are significant parallels. The reasons given in Quill for rejecting the physical presence rule for due process purposes apply as well to the question whether physical presence is a requisite for an out-of-state seller’s liability to remit sales taxes. Physical presence is not necessary to create a substantial nexus. The Quill majority expressed concern that without the physical presence rule \"a state tax might unduly burden interstate commerce\" by subjecting retailers to tax¬ collection obligations in thousands of different taxing jurisdictions. Id., at 313, n. 6. But the administrative costs of compliance, especially in the modern economy with its Internet technology, are largely unrelated to whether a company happens to have a physical presence in a State. For example, a business with one salesperson in each State must collect sales taxes in every jurisdiction in which goods are delivered; but a business with 500 salespersons in one central location and a website accessible in every State need not collect sales taxes on otherwise identical nationwide sales. In other words, under Quill, a small company with diverse physical presence might be equally or more burdened by compliance costs than a large remote seller. The physical presence rule is a poor proxy for the compliance costs faced by companies that do business in multiple States. Other aspects of the Court’s doctrine can better and more accurately address any potential burdens on interstate commerce, whether or not Quill’s physical presence rule is satisfied. 2 The Court has consistently explained that the Commerce Clause was designed to prevent States from engaging in economic discrimination so they would not divide into isolated, separable units. See Philadelphia v. New Jersey, 437 U. S. 617, 623 (1978). But it is \"not the purpose of the [C]ommerce [C]lause to relieve those engaged in interstate commerce from their just share of state tax burden.\" Complete Auto, supra, at 288 (internal quotation marks omitted). And it is certainly not the purpose of the Commerce Clause to permit the Judiciary to create market distortions. \"If the Commerce Clause was intended to put businesses on an even playing field, the [physical presence] rule is hardly a way to achieve that goal.\" Quill, supra, at 329 (opinion of White, J.). Quill puts both local businesses and many interstate businesses with physical presence at a competitive disadvantage relative to remote sellers. Remote sellers can avoid the regulatory burdens of tax collection and can offer de facto lower prices caused by the widespread failure of consumers to pay the tax on their own. This \"guarantees a competitive benefit to certain firms simply because of the organizational form they choose\" while the rest of the Court’s jurisprudence \"is all about preventing discrimination between firms.\" Direct Marketing, 814 F. 3d, at 1150– 1151 (Gorsuch, J., concurring). In effect, Quill has come to serve as a judicially created tax shelter for businesses that decide to limit their physical presence and still sell their goods and services to a State’s consumers—something that has become easier and more prevalent as technology has advanced. Worse still, the rule produces an incentive to avoid physical presence in multiple States. Distortions caused by the desire of businesses to avoid tax collection mean that the market may currently lack storefronts, distribution points, and employment centers that otherwise would be efficient or desirable. The Commerce Clause must not prefer interstate commerce only to the point where a merchant physically crosses state borders. Rejecting the physical presence rule is necessary to ensure that artificial competitive advantages are not created by this Court’s precedents. This Court should not prevent States from collecting lawful taxes through a physical presence rule that can be satisfied only if there is an employee or a building in the State. 3 The Court’s Commerce Clause jurisprudence has \"eschewed formalism for a sensitive, case-by-case analysis of purposes and effects.\" West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 201 (1994). Quill, in contrast, treats economically identical actors differently, and for arbitrary reasons. Consider, for example, two businesses that sell furniture online. The first stocks a few items of inventory in a small warehouse in North Sioux City, South Dakota. The second uses a major warehouse just across the border in South Sioux City, Nebraska, and maintains a sophisticated website with a virtual showroom accessible in every State, including South Dakota. By reason of its physical presence, the first business must collect and remit a tax on all of its sales to customers from South Dakota, even those sales that have nothing to do with the warehouse. See National Geographic, 430 U. S., at 561; Scripto, Inc., 362 U. S., at 211–212. But, under Quill, the second, hypothetical seller cannot be subject to the same tax for the sales of the same items made through a pervasive Internet presence. This distinction simply makes no sense. So long as a state law avoids \"any effect forbidden by the Commerce Clause,\" Complete Auto, 430 U. S., at 285, courts should not rely on anachronistic formalisms to invalidate it. The basic principles of the Court’s Commerce Clause jurisprudence are grounded in functional, marketplace dynamics; and States can and should consider those realities in enacting and enforcing their tax laws. B The Quill Court itself acknowledged that the physical presence rule is \"artificial at its edges.\" 504 U. S., at 315. That was an understatement when Quill was decided; and when the day-to-day functions of marketing and distribution in the modern economy are considered, it is all the more evident that the physical presence rule is artificial in its entirety. Modern e-commerce does not align analytically with a test that relies on the sort of physical presence defined in Quill. In a footnote, Quill rejected the argument that \"title to ‘a few floppy diskettes’ present in a State\" was sufficient to constitute a \"substantial nexus,\" id., at 315, n. 8. But it is not clear why a single employee or a single warehouse should create a substantial nexus while \"physical\" aspects of pervasive modern technology should not. For example, a company with a website accessible in South Dakota may be said to have a physical presence in the State via the customers’ computers. A website may leave cookies saved to the customers’ hard drives, or customers may download the company’s app onto their phones. Or a company may lease data storage that is permanently, or even occasionally, located in South Dakota. Cf. United States v. Microsoft Corp., 584 U. S. ___ (2018) (per curiam). What may have seemed like a \"clear,\" \"bright-line tes[t]\" when Quill was written now threatens to compound the arbitrary consequences that should have been apparent from the outset. 504 U. S., at 315. The \"dramatic technological and social changes\" of our \"increasingly interconnected economy\" mean that buyers are \"closer to most major retailers\" than ever before— \"regardless of how close or far the nearest storefront.\" Direct Marketing Assn. v. Brohl, 575 U. S. ___, ___, ___ (2015) (KENNEDY, J., concurring) (slip op., at 2, 3). Between targeted advertising and instant access to most consumers via any internet-enabled device, \"a business may be present in a State in a meaningful way without\" that presence \"being physical in the traditional sense of the term.\" Id., at ___ (slip op., at 3). A virtual showroom can show far more inventory, in far more detail, and with greater opportunities for consumer and seller interaction than might be possible for local stores. Yet the continuous and pervasive virtual presence of retailers today is, under Quill, simply irrelevant. This Court should not maintain a rule that ignores these substantial virtual connections to the State. C The physical presence rule as defined and enforced in Bellas Hess and Quill is not just a technical legal problem—it is an extraordinary imposition by the Judiciary on States’ authority to collect taxes and perform critical public functions. Forty-one States, two Territories, and the District of Columbia now ask this Court to reject the test formulated in Quill. See Brief for Colorado et al. as Amici Curiae. Quill’s physical presence rule intrudes on States’ reasonable choices in enacting their tax systems. And that it allows remote sellers to escape an obligation to remit a lawful state tax is unfair and unjust. It is unfair and unjust to those competitors, both local and out of State, who must remit the tax; to the consumers who pay the tax; and to the States that seek fair enforcement of the sales tax, a tax many States for many years have considered an indispensable source for raising revenue. In essence, respondents ask this Court to retain a rule that allows their customers to escape payment of sales taxes—taxes that are essential to create and secure the active market they supply with goods and services. An example may suffice. Wayfair offers to sell a vast selection of furnishings. Its advertising seeks to create an image of beautiful, peaceful homes, but it also says that \"‘[o]ne of the best things about buying through Wayfair is that we do not have to charge sales tax.’\" Brief for Petitioner 55. What Wayfair ignores in its subtle offer to assist in tax evasion is that creating a dream home assumes solvent state and local governments. State taxes fund the police and fire departments that protect the homes containing their customers’ furniture and ensure goods are safely delivered; maintain the public roads and municipal services that allow communication with and access to customers; support the \"sound local banking institutions to support credit transactions [and] courts to ensure collection of the purchase price,\" Quill, 504 U. S., at 328 (opin¬ion of White, J.); and help create the \"climate of consumer confidence\" that facilitates sales, see ibid. According to respondents, it is unfair to stymie their tax-free solicitation of customers. But there is nothing unfair about requiring companies that avail themselves of the States’ benefits to bear an equal share of the burden of tax collection. Fairness dictates quite the opposite result. Helping respondents’ customers evade a lawful tax unfairly shifts to those consumers who buy from their competitors with a physical presence that satisfies Quill—even one warehouse or one salesperson—an increased share of the taxes. It is essential to public confidence in the tax system that the Court avoid creating inequitable exceptions. This is also essential to the confidence placed in this Court’s Commerce Clause decisions. Yet the physical presence rule undermines that necessary confidence by giving some online retailers an arbitrary advantage over their competitors who collect state sales taxes. In the name of federalism and free markets, Quill does harm to both. The physical presence rule it defines has limited States’ ability to seek long-term prosperity and has prevented market participants from competing on an even playing field. IV \"Although we approach the reconsideration of our decisions with the utmost caution, stare decisis is not an inexorable command.\" Pearson v. Callahan, 555 U. S. 223, 233 (2009) (quoting State Oil Co. v. Khan, 522 U. S. 3, 20 (1997); alterations and internal quotation marks omitted). Here, stare decisis can no longer support the Court’s prohibition of a valid exercise of the States’ sovereign power. If it becomes apparent that the Court’s Commerce Clause decisions prohibit the States from exercising their lawful sovereign powers in our federal system, the Court should be vigilant in correcting the error. While it can be conceded that Congress has the authority to change the physical presence rule, Congress cannot change the constitutional default rule. It is inconsistent with the Court’s proper role to ask Congress to address a false constitutional premise of this Court’s own creation. Courts have acted as the front line of review in this limited sphere; and hence it is important that their principles be accurate and logical, whether or not Congress can or will act in response. It is currently the Court, and not Congress, that is limiting the lawful prerogatives of the States. Further, the real world implementation of Commerce Clause doctrines now makes it manifest that the physical presence rule as defined by Quill must give way to the \"far-reaching systemic and structural changes in the economy\" and \"many other societal dimensions\" caused by the Cyber Age. Direct Marketing, 575 U. S., at ___ (KENNEDY, J., concurring) (slip op., at 3). Though Quill was wrong on its own terms when it was decided in 1992, since then the Internet revolution has made its earlier error all the more egregious and harmful. The Quill Court did not have before it the present realities of the interstate marketplace. In 1992, less than 2 percent of Americans had Internet access. See Brief for Retail Litigation Center, Inc., et al. as Amici Curiae 11, and n. 10. Today that number is about 89 percent. Ibid., and n. 11. When it decided Quill, the Court could not have envisioned a world in which the world’s largest retailer would be a remote seller, S. Li, Amazon Overtakes Wal-Mart as Biggest Retailer, L. A. Times, July 24, 2015, http://www. latimes.com/business/la-fi-amazon-walmart-20150724¬ story.html (all Internet materials as last visited June 18, 2018). The Internet’s prevalence and power have changed the dynamics of the national economy. In 1992, mail-order sales in the United States totaled $180 billion. 504 U. S., at 329 (opinion of White, J.). Last year, e-commerce retail sales alone were estimated at $453.5 billion. Dept. of Commerce, U. S. Census Bureau News, Quarterly Retail E-Commerce Sales: 4th Quarter 2017 (CB18–21, Feb. 16, 2018). Combined with traditional remote sellers, the total exceeds half a trillion dollars. Sales Taxes Report, at 9. Since the Department of Commerce first began tracking ecommerce sales, those sales have increased tenfold from 0.8 percent to 8.9 percent of total retail sales in the United States. Compare Dept. of Commerce, U. S. Census Bureau, Retail E-Commerce Sales in Fourth Quarter 2000 (CB01–28, Feb. 16, 2001), https://www.census.gov/mrts/ www/data/pdf/00Q4.pdf, with U. S. Census Bureau News, Quarterly Retail E-Commerce Sales: 4th Quarter 2017. And it is likely that this percentage will increase. Last year, e-commerce grew at four times the rate of traditional retail, and it shows no sign of any slower pace. See ibid. This expansion has also increased the revenue shortfall faced by States seeking to collect their sales and use taxes. In 1992, it was estimated that the States were losing between $694 million and $3 billion per year in sales tax revenues as a result of the physical presence rule. Brief for Law Professors et al. as Amici Curiae 11, n. 7. Now estimates range from $8 to $33 billion. Sales Taxes Report, at 11–12; Brief for Petitioner 34–35. The South Dakota Legislature has declared an emergency, S. B. 106, §9, which again demonstrates urgency of overturning the physical presence rule. The argument, moreover, that the physical presence rule is clear and easy to apply is unsound. Attempts to apply the physical presence rule to online retail sales are proving unworkable. States are already confronting the complexities of defining physical presence in the Cyber Age. For example, Massachusetts proposed a regulation that would have defined physical presence to include making apps available to be downloaded by in-state residents and placing cookies on in-state residents’ web browsers. See 830 Code Mass. Regs. 64H.1.7 (2017). Ohio recently adopted a similar standard. See Ohio Rev. Code Ann. §5741.01(I)(2)(i) (Lexis Supp. 2018). Some States have enacted so-called \"click through\" nexus statutes, which define nexus to include out-of-state sellers that contract with in-state residents who refer customers for compensation. See e.g., N. Y. Tax Law Ann. §1101(b)(8)(vi) (West 2017); Brief for Tax Foundation as Amicus Curiae 20–22 (listing 21 States with similar statutes). Others still, like Colorado, have imposed notice and reporting requirements on out-of-state retailers that fall just short of actually collecting and remitting the tax. See Direct Marketing, 814 F. 3d, at 1133 (discussing Colo. Rev. Stat. §39–21–112(3.5)); Brief for Tax Foundation 24–26 (listing nine States with similar statutes). Statutes of this sort are likely to embroil courts in technical and arbitrary disputes about what counts as physical presence. Reliance interests are a legitimate consideration when the Court weighs adherence to an earlier but flawed precedent. See Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___–___ (2015) (slip op., at 9–10). But even on its own terms, the physical presence rule as defined by Quill is no longer a clear or easily applicable standard, so arguments for reliance based on its clarity are misplaced. And, importantly, stare decisis accommodates only \"legitimate reliance interest[s].\" United States v. Ross, 456 U. S. 798, 824 (1982). Here, the tax distortion created by Quill exists in large part because consumers regularly fail to comply with lawful use taxes. Some remote retailers go so far as to advertise sales as tax free. See S. B. 106, §8(3); see also Brief for Petitioner 55. A business \"is in no position to found a constitutional right on the practical opportunities for tax avoidance.\" Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 366 (1941). Respondents argue that \"the physical presence rule has permitted start-ups and small businesses to use the Inter¬net as a means to grow their companies and access a national market, without exposing them to the daunting complexity and business-development obstacles of nationwide sales tax collection.\" Brief for Respondents 29. These burdens may pose legitimate concerns in some instances, particularly for small businesses that make a small volume of sales to customers in many States. State taxes differ, not only in the rate imposed but also in the categories of goods that are taxed and, sometimes, the relevant date of purchase. Eventually, software that is available at a reasonable cost may make it easier for small businesses to cope with these problems. Indeed, as the physical presence rule no longer controls, those systems may well become available in a short period of time, either from private providers or from state taxing agencies themselves. And in all events, Congress may legislate to address these problems if it deems it necessary and fit to do so. In this case, however, South Dakota affords small merchants a reasonable degree of protection. The law at issue requires a merchant to collect the tax only if it does a considerable amount of business in the State; the law is not retroactive; and South Dakota is a party to the Streamlined Sales and Use Tax Agreement, see infra at 23. Finally, other aspects of the Court’s Commerce Clause doctrine can protect against any undue burden on interstate commerce, taking into consideration the small businesses, startups, or others who engage in commerce across state lines. For example, the United States argues that tax-collection requirements should be analyzed under the balancing framework of Pike v. Bruce Church, Inc., 397 U. S. 137. Others have argued that retroactive liability risks a double tax burden in violation of the Court’s apportionment jurisprudence because it would make both the buyer and the seller legally liable for collecting and remitting the tax on a transaction intended to be taxed only once. See Brief for Law Professors et al. as Amici Curiae 7, n. 5. Complex state tax systems could have the effect of discriminating against interstate commerce. Concerns that complex state tax systems could be a burden on small business are answered in part by noting that, as discussed below, there are various plans already in place to simplify collection; and since in-state businesses pay the taxes as well, the risk of discrimination against out-of-state sellers is avoided. And, if some small businesses with only de minimis contacts seek relief from collection systems thought to be a burden, those entities may still do so under other theories. These issues are not before the Court in the instant case; but their potential to arise in some later case cannot justify retaining this artificial, anachronistic rule that deprives States of vast revenues from major businesses. For these reasons, the Court concludes that the physical presence rule of Quill is unsound and incorrect. The Court’s decisions in Quill Corp. v. North Dakota, 504 U. S. 298 (1992), and National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967), should be, and now are, overruled. V In the absence of Quill and Bellas Hess, the first prong of the Complete Auto test simply asks whether the tax applies to an activity with a substantial nexus with the taxing State. 430 U. S., at 279. \"[S]uch a nexus is established when the taxpayer [or collector] ‘avails itself of the substantial privilege of carrying on business’ in that jurisdiction.\" Polar Tankers, Inc. v. City of Valdez, 557 U. S. 1, 11 (2009). Here, the nexus is clearly sufficient based on both the economic and virtual contacts respondents have with the State. The Act applies only to sellers that deliver more than $100,000 of goods or services into South Dakota or engage in 200 or more separate transactions for the delivery of goods and services into the State on an annual basis. S. B. 106, §1. This quantity of business could not have occurred unless the seller availed itself of the substantial privilege of carrying on business in South Dakota. And respondents are large, national companies that undoubtedly maintain an extensive virtual presence. Thus, the substantial nexus requirement of Complete Auto is satisfied in this case. The question remains whether some other principle in the Court’s Commerce Clause doctrine might invalidate the Act. Because the Quill physical presence rule was an obvious barrier to the Act’s validity, these issues have not yet been litigated or briefed, and so the Court need not resolve them here. That said, South Dakota’s tax system includes several features that appear designed to prevent discrimination against or undue burdens upon interstate commerce. First, the Act applies a safe harbor to those who transact only limited business in South Dakota. Second, the Act ensures that no obligation to remit the sales tax may be applied retroactively. S. B. 106, §5. Third, South Dakota is one of more than 20 States that have adopted the Streamlined Sales and Use Tax Agreement. This system standardizes taxes to reduce administrative and compliance costs: It requires a single, state level tax administration, uniform definitions of products and services, simplified tax rate structures, and other uniform rules. It also provides sellers access to sales tax administration software paid for by the State. Sellers who choose to use such software are immune from audit liability. See App. 26–27. Any remaining claims regarding the application of the Commerce Clause in the absence of Quill and Bellas Hess may be addressed in the first instance on remand. The judgment of the Supreme Court of South Dakota is vacated, and the case is remanded for further proceedings not inconsistent with this opinion."},
{"docket_number": "16-285", "syllabus": "In each of these cases, an employer and employee entered into a contract providing for individualized arbitration proceedings to resolve employment disputes between the parties. Each employee nonetheless sought to litigate Fair Labor Standards Act and related state law claims through class or collective actions in federal court. Although the Federal Arbitration Act generally requires courts to enforce arbitration agreements as written, the employees argued that its \"saving clause\" removes this obligation if an arbitration agreement violates some other federal law and that, by requiring individualized proceedings, the agreements here violated the National Labor Relations Act. The employers countered that the Arbitration Act protects agreements requiring arbitration from judicial interference and that neither the saving clause nor the NLRA demands a different conclusion. Until recently, courts as well as the National Labor Relations Board’s general counsel agreed that such arbitration agreements are enforceable. In 2012, however, the Board ruled that the NLRA effectively nullifies the Arbitration Act in cases like these, and since then other courts have either agreed with or deferred to the Board’s position. Held: Congress has instructed in the Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Arbitration Act’s saving clause nor the NLRA suggests otherwise. Pp. 5–25. (a) The Arbitration Act requires courts to enforce agreements to arbitrate, including the terms of arbitration the parties select. See 9 U. S. C. §§2, 3, 4. These emphatic directions would seem to resolve any argument here. The Act’s saving clause—which allows courts to refuse to enforce arbitration agreements \"upon such grounds as exist at law or in equity for the revocation of any contract,\" §2—recognizes only \" ‘generally applicable contract defenses, such as fraud, duress, or unconscionability,’ \" AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 339, not defenses targeting arbitration either by name or by more subtle methods, such as by \"interfer[ing] with fundamental attributes of arbitration,\" id., at 344. By challenging the agreements precisely because they require individualized arbitration instead of class or collective proceedings, the employees seek to interfere with one of these fundamental attributes. Pp. 5–9. (b) The employees also mistakenly claim that, even if the Arbitration Act normally requires enforcement of arbitration agreements like theirs, the NLRA overrides that guidance and renders their agreements unlawful yet. When confronted with two Acts allegedly touching on the same topic, this Court must strive \"to give effect to both.\" Morton v. Mancari, 417 U. S. 535, 551. To prevail, the employees must show a \" ‘clear and manifest’ \" congressional intention to displace one Act with another. Ibid. There is a \"stron[g] presum[ption]\" that disfavors repeals by implication and that \"Congress will specifically address\" preexisting law before suspending the law’s normal operations in a later statute. United States v. Fausto, 484 U. S. 439, 452, 453. The employees ask the Court to infer that class and collective actions are \"concerted activities\" protected by §7 of the NLRA, which guarantees employees \"the right to self-organization, to form, join, or assist labor organizations, to bargain collectively . . . , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,\" 29 U. S. C. §157. But §7 focuses on the right to organize unions and bargain collectively. It does not mention class or collective action procedures or even hint at a clear and manifest wish to displace the Arbitration Act. It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935. Because the catchall term \"other concerted activities for the purpose of . . . other mutual aid or protection\" appears at the end of a detailed list of activities, it should be understood to protect the same kind of things, i.e., things employees do for themselves in the course of exercising their right to free association in the workplace. The NLRA’s structure points to the same conclusion. After speaking of various \"concerted activities\" in §7, the statute establishes a detailed regulatory regime applicable to each item on the list, but gives no hint about what rules should govern the adjudication of class or collective actions in court or arbitration. Nor is it at all obvious what rules should govern on such essential issues as opt-out and opt-in procedures, notice to class members, and class certification standards. Telling too is the fact that Congress has shown that it knows exactly how to specify certain dispute resolution procedures, cf., e.g., 29 U. S. C. §§216(b), 626, or to override the Arbitration Act, see, e.g., 15 U. S. C. §1226(a)(2), but Congress has done nothing like that in the NLRA. The employees suggest that the NLRA does not discuss class and collective action procedures because it means to confer a right to use existing procedures provided by statute or rule, but the NLRA does not say even that much. And if employees do take existing rules as they find them, they must take them subject to those rules’ inherent limitations, including the principle that parties may depart from them in favor of individualized arbitration. In another contextual clue, the employees’ underlying causes of action arise not under the NLRA but under the Fair Labor Standards Act, which permits the sort of collective action the employees wish to pursue here. Yet they do not suggest that the FLSA displaces the Arbitration Act, presumably because the Court has held that an identical collective action scheme does not prohibit individualized arbitration proceedings, see Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 32. The employees’ theory also runs afoul of the rule that Congress \"does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions,\" Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468, as it would allow a catchall term in the NLRA to dictate the particulars of dispute resolution procedures in Article III courts or arbitration proceedings—matters that are usually left to, e.g., the Federal Rules of Civil Procedure, the Arbitration Act, and the FLSA. Nor does the employees’ invocation of the Norris-LaGuardia Act, a predecessor of the NLRA, help their argument. That statute declares unenforceable contracts in conflict with its policy of protecting workers’ \"concerted activities for the purpose of collective bargaining or other mutual aid or protection,\" 29 U. S. C. §102, and just as under the NLRA, that policy does not conflict with Congress’s directions favoring arbitration. Precedent confirms the Court’s reading. The Court has rejected many efforts to manufacture conflicts between the Arbitration Act and other federal statutes, see, e.g. American Express Co. v. Italian Colors Restaurant, 570 U. S. 228; and its §7 cases have generally involved efforts related to organizing and collective bargaining in the workplace, not the treatment of class or collective action procedures in court or arbitration, see, e.g., NLRB v. Washington Aluminum Co., 370 U. S. 9. Finally, the employees cannot expect deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, because Chevron’s essential premises are missing. The Board sought not to interpret just the NLRA, \"which it administers,\" id., at 842, but to interpret that statute in a way that limits the work of the Arbitration Act, which the agency does not administer. The Board and the Solicitor General also dispute the NLRA’s meaning, articulating no single position on which the Executive Branch might be held \"accountable to the people.\" Id., at 865. And after \"employing traditional tools of statutory construction,\" id., at 843, n. 9, including the canon against reading conflicts into statutes, there is no unresolved ambiguity for the Board to address. Pp. 9–21.", "opinion": "Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers? As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings. Nor can we agree with the employees’ suggestion that the National Labor Relations Act (NLRA) offers a conflicting command. It is this Court’s duty to interpret Congress’s statutes as a harmonious whole rather than at war with one another. And abiding that duty here leads to an unmistakable conclusion. The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum. This Court has never read a right to class actions into the NLRA—and for three quarters of a century neither did the National Labor Relations Board. Far from conflicting, the Arbitration Act and the NLRA have long enjoyed separate spheres of influence and neither permits this Court to declare the parties’ agreements unlawful. I The three cases before us differ in detail but not in substance. Take Ernst & Young LLP v. Morris. There Ernst & Young and one of its junior accountants, Stephen Morris, entered into an agreement providing that they would arbitrate any disputes that might arise between them. The agreement stated that the employee could choose the arbitration provider and that the arbitrator could \"grant any relief that could be granted by . . . a court\" in the relevant jurisdiction. App. in No. 16–300, p. 43. The agreement also specified individualized arbitration, with claims \"pertaining to different [e]mployees [to] be heard in separate proceedings.\" Id., at 44. After his employment ended, and despite having agreed to arbitrate claims against the firm, Mr. Morris sued Ernst & Young in federal court. He alleged that the firm had misclassified its junior accountants as professional employees and violated the federal Fair Labor Standards Act (FLSA) and California law by paying them salaries without overtime pay. Although the arbitration agreement provided for individualized proceedings, Mr. Morris sought to litigate the federal claim on behalf of a nationwide class under the FLSA’s collective action provision, 29 U. S. C. §216(b). He sought to pursue the state law claim as a class action under Federal Rule of Civil Procedure 23. Ernst & Young replied with a motion to compel arbitration. The district court granted the request, but the Ninth Circuit reversed this judgment. 834 F. 3d 975 (2016). The Ninth Circuit recognized that the Arbitration Act generally requires courts to enforce arbitration agreements as written. But the court reasoned that the statute’s \"saving clause,\" see 9 U. S. C. §2, removes this obligation if an arbitration agreement violates some other federal law. And the court concluded that an agreement requiring individualized arbitration proceedings violates the NLRA by barring employees from engaging in the \"concerted activit[y],\" 29 U. S. C. §157, of pursuing claims as a class or collective action. Judge Ikuta dissented. In her view, the Arbitration Act protected the arbitration agreement from judicial interference and nothing in the Act’s saving clause suggested otherwise. Neither, she concluded, did the NLRA demand a different result. Rather, that statute focuses on protecting unionization and collective bargaining in the workplace, not on guaranteeing class or collective action procedures in disputes before judges or arbitrators. Although the Arbitration Act and the NLRA have long coexisted—they date from 1925 and 1935, respectively— the suggestion they might conflict is something quite new. Until a couple of years ago, courts more or less agreed that arbitration agreements like those before us must be enforced according to their terms. See, e.g., Owen v. Bristol Care, Inc., 702 F. 3d 1050 (CA8 2013); Sutherland v. Ernst & Young LLP, 726 F. 3d 290 (CA2 2013); D. R. Horton, Inc. v. NLRB, 737 F. 3d 344 (CA5 2013); Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 327 P. 3d 129 (2014); Tallman v. Eighth Jud. Dist. Court, 131 Nev. 71, 359 P. 3d 113 (2015); 808 F. 3d 1013 (CA5 2015) (case below in No. 16–307). The National Labor Relations Board’s general counsel expressed much the same view in 2010. Remarking that employees and employers \"can benefit from the relative simplicity and informality of resolving claims before arbitrators,\" the general counsel opined that the validity of such agreements \"does not involve consideration of the policies of the National Labor Relations Act.\" Memorandum GC 10–06, pp. 2, 5 (June 16, 2010). But recently things have shifted. In 2012, the Board— for the first time in the 77 years since the NLRA’s adoption—asserted that the NLRA effectively nullifies the Arbitration Act in cases like ours. D. R. Horton, Inc., 357 N. L. R. B. 2277. Initially, this agency decision received a cool reception in court. See D. R. Horton, 737 F. 3d, at 355–362. In the last two years, though, some circuits have either agreed with the Board’s conclusion or thought themselves obliged to defer to it under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). See 823 F. 3d 1147 (CA7 2016) (case below in No. 16–285); 834 F. 3d 975 (case below in No. 16–300); NLRB v. Alternative Entertainment, Inc., 858 F. 3d 393 (CA6 2017). More recently still, the disagreement has grown as the Executive has disavowed the Board’s (most recent) position, and the Solicitor General and the Board have offered us battling briefs about the law’s meaning. We granted certiorari to clear the confusion. 580 U. S. ___ (2017). II We begin with the Arbitration Act and the question of its saving clause. Congress adopted the Arbitration Act in 1925 in response to a perception that courts were unduly hostile to arbitration. No doubt there was much to that perception. Before 1925, English and American common law courts routinely refused to enforce agreements to arbitrate disputes. Scherk v. Alberto-Culver Co., 417 U. S. 506, 510, n. 4 (1974). But in Congress’s judgment arbitration had more to offer than courts recognized—not least the promise of quicker, more informal, and often cheaper resolutions for everyone involved. Id., at 511. So Congress directed courts to abandon their hostility and instead treat arbitration agreements as \"valid, irrevocable, and enforceable.\" 9 U. S. C. §2. The Act, this Court has said, establishes \"a liberal federal policy favoring arbitration agreements.\" Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395 (1967)); see id., at 404 (discussing \"the plain meaning of the statute\" and \"the unmistakably clear congressional purpose that the arbitration procedure, when selected by the parties to a contract, be speedy and not subject to delay and obstruction in the courts\"). Not only did Congress require courts to respect and enforce agreements to arbitrate; it also specifically directed them to respect and enforce the parties’ chosen arbitration procedures. See §3 (providing for a stay of litigation pending arbitration \"in accordance with the terms of the agreement\"); §4 (providing for \"an order directing that . . . arbitration proceed in the manner provided for in such agreement\"). Indeed, we have often observed that the Arbitration Act requires courts \"rigorously\" to \"enforce arbitration agreements according to their terms, including terms that specify with whom the parties choose to arbitrate their disputes and the rules under which that arbitration will be conducted.\" American Express Co. v. Italian Colors Restaurant, 570 U. S. 228, 233 (2013) (some emphasis added; citations, internal quotation marks, and brackets omitted). On first blush, these emphatic directions would seem to resolve any argument under the Arbitration Act. The parties before us contracted for arbitration. They proceeded to specify the rules that would govern their arbitrations, indicating their intention to use individualized rather than class or collective action procedures. And this much the Arbitration Act seems to protect pretty absolutely. See AT&T Mobility LLC v. Concepcion, 563 U. S. 333 (2011); Italian Colors, supra; DIRECTV, Inc. v. Imburgia, 577 U. S. ___ (2015). You might wonder if the balance Congress struck in 1925 between arbitration and litigation should be revisited in light of more contemporary developments. You might even ask if the Act was good policy when enacted. But all the same you might find it difficult to see how to avoid the statute’s application. Still, the employees suggest the Arbitration Act’s saving clause creates an exception for cases like theirs. By its terms, the saving clause allows courts to refuse to enforce arbitration agreements \"upon such grounds as exist at law or in equity for the revocation of any contract.\" §2. That provision applies here, the employees tell us, because the NLRA renders their particular class and collective action waivers illegal. In their view, illegality under the NLRA is a \"ground\" that \"exists at law . . . for the revocation\" of their arbitration agreements, at least to the extent those agreements prohibit class or collective action proceedings. The problem with this line of argument is fundamental. Put to the side the question whether the saving clause was designed to save not only state law defenses but also defenses allegedly arising from federal statutes. See 834 F. 3d, at 991–992, 997 (Ikuta, J., dissenting). Put to the side the question of what it takes to qualify as a ground for \"revocation\" of a contract. See Concepcion, supra, at 352–355 (THOMAS, J., concurring); post, at 1–2 (THOMAS, J., concurring). Put to the side for the moment, too, even the question whether the NLRA actually renders class and collective action waivers illegal. Assuming (but not granting) the employees could satisfactorily answer all those questions, the saving clause still can’t save their cause. It can’t because the saving clause recognizes only defenses that apply to \"any\" contract. In this way the clause establishes a sort of \"equal-treatment\" rule for arbitration contracts. Kindred Nursing Centers L. P. v. Clark, 581 U. S. ___, ___ (2017) (slip op., at 4). The clause \"permits agreements to arbitrate to be invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability.’\" Concepcion, 563 U. S., at 339. At the same time, the clause offers no refuge for \"defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.\" Ibid. Under our precedent, this means the saving clause does not save defenses that target arbitration either by name or by more subtle methods, such as by \"interfer[ing] with fundamental attributes of arbitration.\" Id., at 344; see Kindred Nursing, supra, at ___ (slip op., at 5). This is where the employees’ argument stumbles. They don’t suggest that their arbitration agreements were extracted, say, by an act of fraud or duress or in some other unconscionable way that would render any contract unenforceable. Instead, they object to their agreements precisely because they require individualized arbitration proceedings instead of class or collective ones. And by attacking (only) the individualized nature of the arbitration proceedings, the employees’ argument seeks to interfere with one of arbitration’s fundamental attributes. We know this much because of Concepcion. There this Court faced a state law defense that prohibited as unconscionable class action waivers in consumer contracts. The Court readily acknowledged that the defense formally applied in both the litigation and the arbitration context. 563 U. S., at 338, 341. But, the Court held, the defense failed to qualify for protection under the saving clause because it interfered with a fundamental attribute of arbitration all the same. It did so by effectively permitting any party in arbitration to demand class-wide proceedings despite the traditionally individualized and informal nature of arbitration. This \"fundamental\" change to the traditional arbitration process, the Court said, would \"sacrific[e] the principal advantage of arbitration—its informality—and mak[e] the process slower, more costly, and more likely to generate procedural morass than final judgment.\" Id., at 347, 348. Not least, Concepcion noted, arbitrators would have to decide whether the named class representatives are sufficiently representative and typical of the class; what kind of notice, opportunity to be heard, and right to opt out absent class members should enjoy; and how discovery should be altered in light of the class-wide nature of the proceedings. Ibid. All of which would take much time and effort, and introduce new risks and costs for both sides. Ibid. In the Court’s judgment, the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace. Of course, Concepcion has its limits. The Court recognized that parties remain free to alter arbitration procedures to suit their tastes, and in recent years some parties have sometimes chosen to arbitrate on a class-wide basis. Id., at 351. But Concepcion’s essential insight remains: courts may not allow a contract defense to reshape traditional individualized arbitration by mandating class-wide arbitration procedures without the parties’ consent. Id., at 344–351; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662, 684–687 (2010). Just as judicial antagonism toward arbitration before the Arbitration Act’s enactment \"manifested itself in a great variety of devices and formulas declaring arbitration against public policy,\" Concepcion teaches that we must be alert to new devices and formulas that would achieve much the same result today. 563 U. S., at 342 (internal quotation marks omitted). And a rule seeking to declare individualized arbitration proceedings off limits is, the Court held, just such a device. The employees’ efforts to distinguish Concepcion fall short. They note that their putative NLRA defense would render an agreement \"illegal\" as a matter of federal statutory law rather than \"unconscionable\" as a matter of state common law. But we don’t see how that distinction makes any difference in light of Concepion’s rationale and rule. Illegality, like unconscionability, may be a traditional, generally applicable contract defense in many cases, including arbitration cases. But an argument that a contract is unenforceable just because it requires bilateral arbitration is a different creature. A defense of that kind, Concepcion tells us, is one that impermissibly disfavors arbitration whether it sounds in illegality or unconscionability. The law of precedent teaches that like cases should generally be treated alike, and appropriate respect for that principle means the Arbitration Act’s saving clause can no more save the defense at issue in these cases than it did the defense at issue in Concepcion. At the end of our encounter with the Arbitration Act, then, it appears just as it did at the beginning: a congressional command requiring us to enforce, not override, the terms of the arbitration agreements before us. III But that’s not the end of it. Even if the Arbitration Act normally requires us to enforce arbitration agreements like theirs, the employees reply that the NLRA overrides that guidance in these cases and commands us to hold their agreements unlawful yet. This argument faces a stout uphill climb. When confronted with two Acts of Congress allegedly touching on the same topic, this Court is not at \"liberty to pick and choose among congressional enactments\" and must instead strive \"‘to give effect to both.’\" Morton v. Mancari, 417 U. S. 535, 551 (1974). A party seeking to suggest that two statutes cannot be harmonized, and that one displaces the other, bears the heavy burden of showing \"‘a clearly expressed congressional intention’\" that such a result should follow. Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer, 515 U. S. 528, 533 (1995). The intention must be \"‘clear and manifest.’\" Morton, supra, at 551. And in approaching a claimed conflict, we come armed with the \"stron[g] presum[ption]\" that repeals by implication are \"disfavored\" and that \"Congress will specifically address\" preexisting law when it wishes to suspend its normal operations in a later statute. United States v. Fausto, 484 U. S. 439, 452, 453 (1988). These rules exist for good reasons. Respect for Congress as drafter counsels against too easily finding irreconcilable conflicts in its work. More than that, respect for the separation of powers counsels restraint. Allowing judges to pick and choose between statutes risks transforming them from expounders of what the law is into policymakers choosing what the law should be. Our rules aiming for harmony over conflict in statutory interpretation grow from an appreciation that it’s the job of Congress by legislation, not this Court by supposition, both to write the laws and to repeal them. Seeking to demonstrate an irreconcilable statutory conflict even in light of these demanding standards, the employees point to Section 7 of the NLRA. That provision guarantees workers \"the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.\" 29 U. S. C. §157. From this language, the employees ask us to infer a clear and manifest congressional command to displace the Arbitration Act and outlaw agreements like theirs. But that much inference is more than this Court may make. Section 7 focuses on the right to organize unions and bargain collectively. It may permit unions to bargain to prohibit arbitration. Cf. 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 256–260 (2009). But it does not express approval or disapproval of arbitration. It does not mention class or collective action procedures. It does not even hint at a wish to displace the Arbitration Act—let alone accomplish that much clearly and manifestly, as our precedents demand. Neither should any of this come as a surprise. The notion that Section 7 confers a right to class or collective actions seems pretty unlikely when you recall that procedures like that were hardly known when the NLRA was adopted in 1935. Federal Rule of Civil Procedure 23 didn’t create the modern class action until 1966; class arbitration didn’t emerge until later still; and even the Fair Labor Standards Act’s collective action provision postdated Section 7 by years. See Rule 23–Class Actions, 28 U. S. C. App., p. 1258 (1964 ed., Supp. II); 52 Stat. 1069; Concepcion, 563 U. S., at 349; see also Califano v. Yamasaki, 442 U. S. 682, 700–701 (1979) (noting that the \"usual rule\" then was litigation \"conducted by and on behalf of individual named parties only\"). And while some forms of group litigation existed even in 1935, see 823 F. 3d, at 1154, Section 7’s failure to mention them only reinforces that the statute doesn’t speak to such procedures. A close look at the employees’ best evidence of a potential conflict turns out to reveal no conflict at all. The employees direct our attention to the term \"other concerted activities for the purpose of . . . other mutual aid or protection.\" This catchall term, they say, can be read to include class and collective legal actions. But the term appears at the end of a detailed list of activities speaking of \"self-organization,\" \"form[ing], join[ing], or assist[ing] labor organizations,\" and \"bargain[ing] collectively.\" 29 U. S. C. §157. And where, as here, a more general term follows more specific terms in a list, the general term is usually understood to \"‘embrace only objects similar in nature to those objects enumerated by the preceding specific words.’\" Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115 (2001) (discussing ejusdem generis canon); National Assn. of Mfrs. v. Department of Defense, 583 U. S. ___, ___ (2018) (slip op., at 10). All of which suggests that the term \"other concerted activities\" should, like the terms that precede it, serve to protect things employees \"just do\" for themselves in the course of exercising their right to free association in the workplace, rather than \"the highly regulated, courtroom-bound ‘activities’ of class and joint litigation.\" Alternative Entertainment, 858 F. 3d, at 414– 415 (Sutton, J., concurring in part and dissenting in part) (emphasis deleted). None of the preceding and more specific terms speaks to the procedures judges or arbitrators must apply in disputes that leave the workplace and enter the courtroom or arbitral forum, and there is no textually sound reason to suppose the final catchall term should bear such a radically different object than all its predecessors. The NLRA’s broader structure underscores the point. After speaking of various \"concerted activities\" in Section 7, Congress proceeded to establish a regulatory regime applicable to each of them. The NLRA provides rules for the recognition of exclusive bargaining representatives, 29 U. S. C. §159, explains employees’ and employers’ obligation to bargain collectively, §158(d), and conscribes certain labor organization practices, §§158(a)(3), (b). The NLRA also touches on other concerted activities closely related to organization and collective bargaining, such as picketing, §158(b)(7), and strikes, §163. It even sets rules for adjudicatory proceedings under the NLRA itself. §§160, 161. Many of these provisions were part of the original NLRA in 1935, see 49 Stat. 449, while others were added later. But missing entirely from this careful regime is any hint about what rules should govern the adjudication of class or collective actions in court or arbitration. Without some comparably specific guidance, it’s not at all obvious what procedures Section 7 might protect. Would opt-out class action procedures suffice? Or would opt-in procedures be necessary? What notice might be owed to absent class members? What standards would govern class certification? Should the same rules always apply or should they vary based on the nature of the suit? Nothing in the NLRA even whispers to us on any of these essential questions. And it is hard to fathom why Congress would take such care to regulate all the other matters mentioned in Section 7 yet remain mute about this matter alone— unless, of course, Section 7 doesn’t speak to class and collective action procedures in the first place. Telling, too, is the fact that when Congress wants to mandate particular dispute resolution procedures it knows exactly how to do so. Congress has spoken often and clearly to the procedures for resolving \"actions,\" \"claims,\" \"charges,\" and \"cases\" in statute after statute. E.g., 29 U. S. C. §§216(b), 626; 42 U. S. C. §§2000e–5(b), (f )(3)–(5). Congress has likewise shown that it knows how to override the Arbitration Act when it wishes—by explaining, for example, that, \"[n]otwithstanding any other provision of law, . . . arbitration may be used . . . only if \" certain conditions are met, 15 U. S. C. §1226(a)(2); or that \"[n]o predispute arbitration agreement shall be valid or enforceable\" in other circumstances, 7 U. S. C. §26(n)(2); 12 U. S. C. §5567(d)(2); or that requiring a party to arbitrate is \"unlawful\" in other circumstances yet, 10 U. S. C. §987(e)(3). The fact that we have nothing like that here is further evidence that Section 7 does nothing to address the question of class and collective actions. In response, the employees offer this slight reply. They suggest that the NLRA doesn’t discuss any particular class and collective action procedures because it merely confers a right to use existing procedures provided by statute or rule, \"on the same terms as [they are] made available to everyone else.\" Brief for Respondent in No. 16–285, p. 53, n. 10. But of course the NLRA doesn’t say even that much. And, besides, if the parties really take existing class and collective action rules as they find them, they surely take them subject to the limitations inherent in those rules—including the principle that parties may (as here) contract to depart from them in favor of individualized arbitration procedures of their own design. Still another contextual clue yields the same message. The employees’ underlying causes of action involve their wages and arise not under the NLRA but under an entirely different statute, the Fair Labor Standards Act. The FLSA allows employees to sue on behalf of \"themselves and other employees similarly situated,\" 29 U. S. C. §216(b), and it’s precisely this sort of collective action the employees before us wish to pursue. Yet they do not offer the seemingly more natural suggestion that the FLSA overcomes the Arbitration Act to permit their class and collective actions. Why not? Presumably because this Court held decades ago that an identical collective action scheme (in fact, one borrowed from the FLSA) does not displace the Arbitration Act or prohibit individualized arbitration proceedings. Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 32 (1991) (discussing Age Discrimination in Employment Act). In fact, it turns out that \"[e]very circuit to consider the question\" has held that the FLSA allows agreements for individualized arbitration. Alternative Entertainment, 858 F. 3d, at 413 (opinion of Sutton, J.) (collecting cases). Faced with that obstacle, the employees are left to cast about elsewhere for help. And so they have cast in this direction, suggesting that one statute (the NLRA) steps in to dictate the procedures for claims under a different statute (the FLSA), and thereby overrides the commands of yet a third statute (the Arbitration Act). It’s a sort of interpretive triple bank shot, and just stating the theory is enough to raise a judicial eyebrow. Perhaps worse still, the employees’ theory runs afoul of the usual rule that Congress \"does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.\" Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). Union organization and collective bargaining in the workplace are the bread and butter of the NLRA, while the particulars of dispute resolution procedures in Article III courts or arbitration proceedings are usually left to other statutes and rules— not least the Federal Rules of Civil Procedure, the Arbitration Act, and the FLSA. It’s more than a little doubtful that Congress would have tucked into the mousehole of Section 7’s catchall term an elephant that tramples the work done by these other laws; flattens the parties’ contracted-for dispute resolution procedures; and seats the Board as supreme superintendent of claims arising under a statute it doesn’t even administer. Nor does it help to fold yet another statute into the mix. At points, the employees suggest that the Norris-LaGuardia Act, a precursor of the NLRA, also renders their arbitration agreements unenforceable. But the Norris-LaGuardia Act adds nothing here. It declares \"[un]enforceable\" contracts that conflict with its policy of protecting workers’ \"concerted activities for the purpose of collective bargaining or other mutual aid or protection.\" 29 U. S. C. §§102, 103. That is the same policy the NLRA advances and, as we’ve seen, it does not conflict with Congress’s statutory directions favoring arbitration. See also Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235 (1970) (holding that the Norris-LaGuardia Act’s anti-injunction provisions do not bar enforcement of arbitration agreements). What all these textual and contextual clues indicate, our precedents confirm. In many cases over many years, this Court has heard and rejected efforts to conjure conflicts between the Arbitration Act and other federal statutes. In fact, this Court has rejected every such effort to date (save one temporary exception since overruled), with statutes ranging from the Sherman and Clayton Acts to the Age Discrimination in Employment Act, the Credit Repair Organizations Act, the Securities Act of 1933, the Securities Exchange Act of 1934, and the Racketeer Influenced and Corrupt Organizations Act. Italian Colors, 570 U. S. 228; Gilmer, 500 U. S. 20; CompuCredit Corp. v. Greenwood, 565 U. S. 95 (2012); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 (1989) (overruling Wilko v. Swan, 346 U. S. 427 (1953)); Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987). Throughout, we have made clear that even a statute’s express provision for collective legal actions does not necessarily mean that it precludes \"‘individual attempts at conciliation’\" through arbitration. Gilmer, supra, at 32. And we’ve stressed that the absence of any specific statutory discussion of arbitration or class actions is an important and telling clue that Congress has not displaced the Arbitration Act. CompuCredit, supra, at 103–104; McMahon, supra, at 227; Italian Colors, supra, at 234. Given so much precedent pointing so strongly in one direction, we do not see how we might faithfully turn the other way here. Consider a few examples. In Italian Colors, this Court refused to find a conflict between the Arbitration Act and the Sherman Act because the Sherman Act (just like the NLRA) made \"no mention of class actions\" and was adopted before Rule 23 introduced its exception to the \"usual rule\" of \"individual\" dispute resolution. 570 U. S., at 234 (internal quotation marks omitted). In Gilmer, this Court \"had no qualms in enforcing a class waiver in an arbitration agreement even though\" the Age Discrimination in Employment Act \"expressly permitted collective legal actions.\" Italian Colors, supra, at 237 (citing Gilmer, supra, at 32). And in CompuCredit, this Court refused to find a conflict even though the Credit Repair Organizations Act expressly provided a \"right to sue,\" \"repeated[ly]\" used the words \"action\" and \"court\" and \"class action,\" and even declared \"[a]ny waiver\" of the rights it provided to be \"void.\" 565 U. S., at 99–100 (internal quotation marks omitted). If all the statutes in all those cases did not provide a congressional command sufficient to displace the Arbitration Act, we cannot imagine how we might hold that the NLRA alone and for the first time does so today. The employees rejoin that our precedential story is complicated by some of this Court’s cases interpreting Section 7 itself. But, as it turns out, this Court’s Section 7 cases have usually involved just what you would expect from the statute’s plain language: efforts by employees related to organizing and collective bargaining in the workplace, not the treatment of class or collective actions in court or arbitration proceedings. See, e.g., NLRB v. Washington Aluminum Co., 370 U. S. 9 (1962) (walkout to protest workplace conditions); NLRB v. Textile Workers, 409 U. S. 213 (1972) (resignation from union and refusal to strike); NLRB v. J. Weingarten, Inc., 420 U. S. 251 (1975) (request for union representation at disciplinary interview). Neither do the two cases the employees cite prove otherwise. In Eastex, Inc. v. NLRB, 437 U. S. 556, 558 (1978), we simply addressed the question whether a union’s distribution of a newsletter in the workplace qualified as a protected concerted activity. We held it did, noting that it was \"undisputed that the union undertook the distribution in order to boost its support and improve its bargaining position in upcoming contract negotiations,\" all part of the union’s \"‘continuing organizational efforts.’\" Id., at 575, and n. 24. In NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 831–832 (1984), we held only that an employee’s assertion of a right under a collective bargaining agreement was protected, reasoning that the collective bargaining \"process—beginning with the organization of the union, continuing into the negotiation of a collective-bargaining agreement, and extending through the enforcement of the agreement—is a single, collective activity.\" Nothing in our cases indicates that the NLRA guarantees class and collective action procedures, let alone for claims arising under different statutes and despite the express (and entirely unmentioned) teachings of the Arbitration Act. That leaves the employees to try to make something of our dicta. The employees point to a line in Eastex observing that \"it has been held\" by other courts and the Board \"that the ‘mutual aid or protection’ clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums.\" 437 U. S., at 565– 566; see also Brief for National Labor Relations Board in No. 16–307, p. 15 (citing similar Board decisions). But even on its own terms, this dicta about the holdings of other bodies does not purport to discuss what procedures an employee might be entitled to in litigation or arbitration. Instead this passage at most suggests only that \"resort to administrative and judicial forums\" isn’t \"entirely unprotected.\" Id., at 566. Indeed, the Court proceeded to explain that it did not intend to \"address . . . the question of what may constitute ‘concerted’ activities in this [litigation] context.\" Ibid., n. 15. So even the employees’ dicta, when viewed fairly and fully, doesn’t suggest that individualized dispute resolution procedures might be insufficient and collective procedures might be mandatory. Neither should this come as a surprise given that not a single one of the lower court or Board decisions Eastex discussed went so far as to hold that Section 7 guarantees a right to class or collective action procedures. As we’ve seen, the Board did not purport to discover that right until 2012, and no federal appellate court accepted it until 2016. See D. R. Horton, 357 N. L. R. B. 2277; 823 F. 3d 1147 (case below in No. 16–285). With so much against them in the statute and our precedent, the employees end by seeking shelter in Chevron. Even if this Court doesn’t see what they see in Section 7, the employees say we must rule for them anyway because of the deference this Court owes to an administrative agency’s interpretation of the law. To be sure, the employees do not wish us to defer to the general counsel’s judgment in 2010 that the NLRA and the Arbitration Act coexist peaceably; they wish us to defer instead to the Board’s 2012 opinion suggesting the NLRA displaces the Arbitration Act. No party to these cases has asked us to reconsider Chevron deference. Cf. SAS Institute Inc. v. Iancu, ante, at 11. But even under Chevron’s terms, no deference is due. To show why, it suffices to outline just a few of the most obvious reasons. The Chevron Court justified deference on the premise that a statutory ambiguity represents an \"implicit\" delegation to an agency to interpret a \"statute which it administers.\" 467 U. S., at 841, 844. Here, though, the Board hasn’t just sought to interpret its statute, the NLRA, in isolation; it has sought to interpret this statute in a way that limits the work of a second statute, the Arbitration Act. And on no account might we agree that Congress implicitly delegated to an agency authority to address the meaning of a second statute it does not administer. One of Chevron’s essential premises is simply missing here. It’s easy, too, to see why the \"reconciliation\" of distinct statutory regimes \"is a matter for the courts,\" not agencies. Gordon v. New York Stock Exchange, Inc., 422 U. S. 659, 685–686 (1975). An agency eager to advance its statutory mission, but without any particular interest in or expertise with a second statute, might (as here) seek to diminish the second statute’s scope in favor of a more expansive interpretation of its own—effectively \"‘bootstrap[ping] itself into an area in which it has no jurisdiction.’\" Adams Fruit Co. v. Barrett, 494 U. S. 638, 650 (1990). All of which threatens to undo rather than honor legislative intentions. To preserve the balance Congress struck in its statutes, courts must exercise independent interpretive judgment. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 144 (2002) (noting that this Court has \"never deferred to the Board’s remedial preferences where such preferences potentially trench upon federal statutes and policies unrelated to the NLRA\"). Another justification the Chevron Court offered for deference is that \"policy choices\" should be left to Executive Branch officials \"directly accountable to the people.\" 467 U. S., at 865. But here the Executive seems of two minds, for we have received competing briefs from the Board and from the United States (through the Solicitor General) disputing the meaning of the NLRA. And whatever argument might be mustered for deferring to the Executive on grounds of political accountability, surely it becomes a garble when the Executive speaks from both sides of its mouth, articulating no single position on which it might be held accountable. See Hemel & Nielson, Chevron Step One-and-a-Half, 84 U. Chi. L. Rev. 757, 808 (2017) (\"If the theory undergirding Chevron is that voters should be the judges of the executive branch’s policy choices, then presumably the executive branch should have to take ownership of those policy choices so that voters know whom to blame (and to credit)\"). In these circumstances, we will not defer. Finally, the Chevron Court explained that deference is not due unless a \"court, employing traditional tools of statutory construction,\" is left with an unresolved ambiguity. 467 U. S., at 843, n. 9. And that too is missing: the canon against reading conflicts into statutes is a traditional tool of statutory construction and it, along with the other traditional canons we have discussed, is more than up to the job of solving today’s interpretive puzzle. Where, as here, the canons supply an answer, \"Chevron leaves the stage.\" Alternative Entertainment, 858 F. 3d, at 417 (opinion of Sutton, J.). IV The dissent sees things a little bit differently. In its view, today’s decision ushers us back to the Lochner era when this Court regularly overrode legislative policy judgments. The dissent even suggests we have resurrected the long-dead \"yellow dog\" contract. Post, at 3–17, 30 (opinion of GINSBURG, J.). But like most apocalyptic warnings, this one proves a false alarm. Cf. L. Tribe, American Constitutional Law 435 (1978) (\" ‘Lochnerizing’ has become so much an epithet that the very use of the label may obscure attempts at understanding\"). Our decision does nothing to override Congress’s policy judgments. As the dissent recognizes, the legislative policy embodied in the NLRA is aimed at \"safeguard[ing], first and foremost, workers’ rights to join unions and to engage in collective bargaining.\" Post, at 8. Those rights stand every bit as strong today as they did yesterday. And rather than revive \"yellow dog\" contracts against union organizing that the NLRA outlawed back in 1935, today’s decision merely declines to read into the NLRA a novel right to class action procedures that the Board’s own general counsel disclaimed as recently as 2010. Instead of overriding Congress’s policy judgments, today’s decision seeks to honor them. This much the dissent surely knows. Shortly after invoking the specter of Lochner, it turns around and criticizes the Court for trying too hard to abide the Arbitration Act’s \"‘liberal federal policy favoring arbitration agreements,’\" Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79, 83 (2002), saying we \"‘ski’\" too far down the \"‘slippery slope’\" of this Court’s arbitration precedent, post, at 23. But the dissent’s real complaint lies with the mountain of precedent itself. The dissent spends page after page relitigating our Arbitration Act precedents, rehashing arguments this Court has heard and rejected many times in many cases that no party has asked us to revisit. Compare post, at 18–23, 26 (criticizing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985), Gilmer, 500 U. S. 20, Circuit City, 532 U. S. 105, Concepcion, 563 U. S. 333, Italian Colors, 570 U. S. 228, and CompuCredit, 565 U. S. 95), with Mitsubishi, supra, at 645–650 (Stevens, J., dissenting), Gilmer, supra, at 36, 39–43 (Stevens, J., dissenting), Circuit City, supra, at 124–129 (Stevens, J., dissenting), Concepcion, supra, at 357–367 (BREYER, J., dissenting), Italian Colors, supra, at 240–253 (KAGAN, J., dissenting), and CompuCredit, supra, at 116–117 (GINSBURG, J., dissenting). When at last it reaches the question of applying our precedent, the dissent offers little, and understandably so. Our precedent clearly teaches that a contract defense \"conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures\" is inconsistent with the Arbitration Act and its saving clause. Concepcion, supra, at 336 (opinion of the Court). And that, of course, is exactly what the employees’ proffered defense seeks to do. Nor is the dissent’s reading of the NLRA any more available to us than its reading of the Arbitration Act. The dissent imposes a vast construction on Section 7’s language. Post, at 9. But a statute’s meaning does not always \"turn solely\" on the broadest imaginable \"definitions of its component words.\" Yates v. United States, 574 U. S. ___, ___ (2015) (plurality opinion) (slip op., at 7). Linguistic and statutory context also matter. We have offered an extensive explanation why those clues support our reading today. By contrast, the dissent rests its interpretation on legislative history. Post, at 3–5; see also post, at 19–21. But legislative history is not the law. \"It is the business of Congress to sum up its own debates in its legislation,\" and once it enacts a statute \"‘[w]e do not inquire what the legislature meant; we ask only what the statute means.’\" Schwegmann Brothers v. Calvert Distillers Corp., 341 U. S. 384, 396, 397 (1951) (Jackson, J., concurring) (quoting Justice Holmes). Besides, when it comes to the legislative history here, it seems Congress \"did not discuss the right to file class or consolidated claims against employers.\" D. R. Horton, 737 F. 3d, at 361. So the dissent seeks instead to divine messages from congressional commentary directed to different questions altogether—a project that threatens to \"substitute [the Court] for the Congress.\" Schwegmann, supra, at 396. Nor do the problems end there. The dissent proceeds to argue that its expansive reading of the NLRA conflicts with and should prevail over the Arbitration Act. The NLRA leaves the Arbitration Act without force, the dissent says, because it provides the more \"pinpointed\" direction. Post, at 25. Even taken on its own terms, though, this argument quickly faces trouble. The dissent says the NLRA is the more specific provision because it supposedly \"speaks directly to group action by employees,\" while the Arbitration Act doesn’t speak to such actions. Ibid. But the question before us is whether courts must enforce particular arbitration agreements according to their terms. And it’s the Arbitration Act that speaks directly to the enforceability of arbitration agreements, while the NLRA doesn’t mention arbitration at all. So if forced to choose between the two, we might well say the Arbitration Act offers the more on-point instruction. Of course, there is no need to make that call because, as our precedents demand, we have sought and found a persuasive interpretation that gives effect to all of Congress’s work, not just the parts we might prefer. Ultimately, the dissent retreats to policy arguments. It argues that we should read a class and collective action right into the NLRA to promote the enforcement of wage and hour laws. Post, at 26–30. But it’s altogether unclear why the dissent expects to find such a right in the NLRA rather than in statutes like the FLSA that actually regulate wages and hours. Or why we should read the NLRA as mandating the availability of class or collective actions when the FLSA expressly authorizes them yet allows parties to contract for bilateral arbitration instead. 29 U. S. C. §216(b); Gilmer, supra, at 32. While the dissent is no doubt right that class actions can enhance enforcement by \"spread[ing] the costs of litigation,\" post, at 9, it’s also well known that they can unfairly \"plac[e] pressure on the defendant to settle even unmeritorious claims,\" Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. 393, 445, n. 3 (2010) (GINSBURG, J., dissenting). The respective merits of class actions and private arbitration as means of enforcing the law are questions constitutionally entrusted not to the courts to decide but to the policymakers in the political branches where those questions remain hotly contested. Just recently, for example, one federal agency banned individualized arbitration agreements it blamed for underenforcement of certain laws, only to see Congress respond by immediately repealing that rule. See 82 Fed. Reg. 33210 (2017) (cited post, at 28, n. 15); Pub. L. 115–74, 131 Stat. 1243. This Court is not free to substitute its preferred economic policies for those chosen by the people’s representatives. That, we had always understood, was Lochner’s sin. The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written. While Congress is of course always free to amend this judgment, we see nothing suggesting it did so in the NLRA—much less that it manifested a clear intention to displace the Arbitration Act. Because we can easily read Congress’s statutes to work in harmony, that is where our duty lies. The judgments in Epic, No. 16–285, and Ernst & Young, No. 16–300, are reversed, and the cases are remanded for further proceedings consistent with this opinion. The judgment in Murphy Oil, No. 16–307, is affirmed."},
{"docket_number": "16-1435", "syllabus": "Minnesota law prohibits individuals, including voters, from wearing a \"political badge, political button, or other political insignia\" inside a polling place on Election Day. Minn. Stat. §211B.11(1) (Supp. 2017). This \"political apparel ban\" covers articles of clothing and accessories with political insignia upon them. State election judges have the authority to decide whether a particular item falls within the ban. Violators are subject to a civil penalty or prosecution for a petty misdemeanor. Days before the November 2010 election, petitioner Minnesota Voters Alliance (MVA) and other plaintiffs challenged the ban in Federal District Court on First Amendment grounds. In response to the lawsuit, the State distributed an Election Day Policy to election officials providing guidance on enforcement of the ban. The Election Day Policy specified examples of prohibited apparel to include items displaying the name of a political party, items displaying the name of a candidate, items supporting or opposing a ballot question, \"[i]ssue oriented material designed to influence or impact voting,\" and \"[m]aterial promoting a group with recognizable political views.\" App. to Pet. for Cert. I–1 to I–2. On Election Day, some voters ran into trouble with the ban, including petitioner Andrew Cilek, who allegedly was turned away from the polls for wearing a \"Please I. D. Me\" button and a T-shirt bearing the words \"Don’t Tread on Me\" and a Tea Party Patriots logo. MVA and the other plaintiffs argued that the ban was unconstitutional both on its face and as applied to their particular items of apparel. The District Court granted the State’s motion to dismiss, and the Eighth Circuit affirmed the dismissal of the facial challenge and remanded the case for further proceedings on the as-applied challenge. The District Court granted summary judgment to the State on the as-applied challenge, and the Eighth Circuit affirmed. MVA, Cilek, and petitioner Susan Jeffers (collectively MVA) petitioned for review of their facial First Amendment claim only. Held: Minnesota’s political apparel ban violates the Free Speech Clause of the First Amendment. Pp. 7–19. (a) Because the political apparel ban applies only in a specific location—the interior of a polling place—it implicates the Court’s \" ‘forum based’ approach for assessing restrictions that the government seeks to place on the use of its property.\" International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 678. A polling place in Minnesota qualifies as a nonpublic forum under the Court’s precedents. As such it may be subject to content-based restrictions on speech, see, e.g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806–811, so long as the restrictions are \"reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view,\" Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 46. Because the text of the statute makes no distinction based on the speaker’s political persuasion, the question is whether the apparel ban is \"reasonable in light of the purpose served by the forum\": voting. Cornelius, 473 U. S., at 806. Pp. 7–9. (b) Minnesota’s prohibition on political apparel serves a permissible objective. In Burson v. Freeman, 504 U. S. 191, the Court upheld a Tennessee law imposing a 100-foot zone around polling place entrances in which no person could solicit votes, distribute campaign materials, or \"display . . . campaign posters, signs or other campaign materials.\" 504 U. S., at 193–194 (plurality opinion). In finding that the law withstood even strict scrutiny, the Burson plurality—whose analysis was endorsed by Justice Scalia’s opinion concurring in the judgment—emphasized the problems of fraud, voter intimidation, confusion, and general disorder that had plagued polling places in the past. Against that historical backdrop, the plurality and Justice Scalia upheld Tennessee’s determination that a campaign-free zone outside the polls was necessary to secure the advantages of the secret ballot and protect the right to vote. MVA argues that Burson considered only active campaigning outside the polling place by campaign workers and others trying to engage voters approaching the polls, while Minnesota’s ban prohibits passive self-expression by voters themselves when voting. But although the plurality and Justice Scalia in Burson did not expressly address the application of the Tennessee law to apparel—or consider the interior of the polling place as opposed to its environs—the Tennessee law swept broadly to ban even the plain \"display\" of a campaign-related message, and the Burson Court upheld the law in full. The plurality’s conclusion that the State was warranted in designating an area for the voters as \"their own\" as they enter the polling place, id., at 210, suggests an interest more significant, not less, within that place. No basis exists for rejecting Minnesota’s determination that some forms of campaign advocacy should be excluded from the polling place in order to set it aside as \"an island of calm in which voters can peacefully contemplate their choices.\" Brief for Respondents 43. Casting a vote is a weighty civic act, and the State may reasonably decide that the interior of the polling place should reflect the distinction between voting and campaigning. And while the Court has noted the \"nondisruptive\" nature of expressive apparel in more mundane settings, see, e.g., Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 576, those observations do not speak to the unique context of a polling place on Election Day. Pp. 9–12. (c) But the line the State draws must be reasonable. The State therefore must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. The unmoored use of the term \"political\" in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail this test. The statute does not define the term \"political,\" a word that can broadly encompass anything \"of or relating to government, a government, or the conduct of governmental affairs.\" Webster’s Third New International Dictionary 1755. The State argues that the apparel ban should be interpreted more narrowly to proscribe \"only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.\" Brief for Respondents 13. At the same time, the State argues that the category of \"political\" apparel is not limited to campaign apparel. The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota’s \"electoral choices\" construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category—\"issue oriented material designed to influence or impact voting\"—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an \"issue\" within the meaning of that category. Such a rule—whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot—is not reasonable. The next broad category in the Election Day Policy—any item \"promoting a group with recognizable political views\"—makes matters worse. The State does not confine that category to groups that have endorsed a candidate or taken a position on a ballot question. As a result, any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an \"issue confronting voters.\" The State represents that the ban is limited to apparel promoting groups with \"well-known\" political positions. But that requirement only increases the potential for erratic application, as its enforcement may turn in significant part on the background knowledge of the particular election judge applying it. It is \"self-evident\" that an indeterminate prohibition carries with it \"[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.\" Jews for Jesus, 482 U. S., at 576. The discretion election judges exercise in enforcing the ban must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as \"political.\" And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it. Thus, if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one offered by Minnesota here. Pp. 12–19. 849 F. 3d 749, reversed and remanded.", "opinion": "Under Minnesota law, voters may not wear a political badge, political button, or anything bearing political insignia inside a polling place on Election Day. The question presented is whether this ban violates the Free Speech Clause of the First Amendment. I A Today, Americans going to their polling places on Election Day expect to wait in a line, briefly interact with an election official, enter a private voting booth, and cast an anonymous ballot. Little about this ritual would have been familiar to a voter in the mid-to-late nineteenth century. For one thing, voters typically deposited privately prepared ballots at the polls instead of completing official ballots on-site. These pre-made ballots often took the form of \"party tickets\"—printed slates of candidate selections, often distinctive in appearance, that political parties distributed to their supporters and pressed upon others around the polls. See E. Evans, A History of the Australian Ballot System in the United States 6–11 (1917) (Evans); R. Bensel, The American Ballot Box in the Mid-Nineteenth Century 14–15 (2004) (Bensel). The physical arrangement confronting the voter was also different. The polling place often consisted simply of a \"voting window\" through which the voter would hand his ballot to an election official situated in a separate room with the ballot box. Bensel 11, 13; see, e.g., C. Rowell, Digest of Contested-Election Cases in the Fifty-First Congress 224 (1891) (report of Rep. Lacey) (considering whether \"the ability to reach the window and actually tender the ticket to the [election] judges\" is \"essential in all cases to constitute a good offer to vote\"); Holzer, Election Day 1860, Smithsonian Magazine (Nov. 2008), pp. 46, 52 (describing the interior voting window on the third floor of the Springfield, Illinois courthouse where Abraham Lincoln voted). As a result of this arrangement, \"the actual act of voting was usually performed in the open,\" frequently within view of interested onlookers. Rusk, The Effect of the Australian Ballot Reform on Split Ticket Voting: 1876–1908, Am. Pol. Sci. Rev. 1220, 1221 (1970) (Rusk); see Evans 11–13. As documented in Burson v. Freeman, 504 U. S. 191 (1992), \"[a]pproaching the polling place under this system was akin to entering an open auction place.\" Id., at 202 (plurality opinion). The room containing the ballot boxes was \"usually quiet and orderly,\" but \"[t]he public space outside the window . . . was chaotic.\" Bensel 13. Electioneering of all kinds was permitted. See id., at 13, 16–17; R. Dinkin, Election Day: A Documentary History 19 (2002). Crowds would gather to heckle and harass voters who appeared to be supporting the other side. Indeed, \"[u]nder the informal conventions of the period, election etiquette required only that a ‘man of ordinary courage’ be able to make his way to the voting window.\" Bensel 20–21. \"In short, these early elections were not a very pleasant spectacle for those who believed in democratic government.\" Burson, 504 U. S., at 202 (plurality opinion) (internal quotation marks omitted). By the late nineteenth century, States began implementing reforms to address these vulnerabilities and improve the reliability of elections. Between 1888 and 1896, nearly every State adopted the secret ballot. See id., at 203–205. Because voters now needed to mark their state-printed ballots on-site and in secret, voting moved into a sequestered space where the voters could \"deliberate and make a decision in . . . privacy.\" Rusk 1221; see Evans 35; 1889 Minn. Stat. ch. 3, §§27–28, p. 21 (regulating, as part of Minnesota’s secret ballot law, the arrangement of voting compartments inside the polling place). In addition, States enacted \"viewpoint-neutral restrictions on election-day speech\" in the immediate vicinity of the polls. Burson, 504 U. S., at 214–215 (Scalia, J., concurring in judgment) (by 1900, 34 of 45 States had such restrictions). Today, all 50 States and the District of Columbia have laws curbing various forms of speech in and around polling places on Election Day. Minnesota’s such law contains three prohibitions, only one of which is challenged here. See Minn. Stat. §211B.11(1) (Supp. 2017). The first sentence of §211B.11(1) forbids any person to \"display campaign material, post signs, ask, solicit, or in any manner try to induce or persuade a voter within a polling place or within 100 feet of the building in which a polling place is situated\" to \"vote for or refrain from voting for a candidate or ballot question.\" The second sentence prohibits the distribution of \"political badges, political buttons, or other political insignia to be worn at or about the polling place.\" The third sentence—the \"political apparel ban\"—states that a \"political badge, political button, or other political insignia may not be worn at or about the polling place.\" Versions of all three prohibitions have been on the books in Minnesota for over a century. See 1893 Minn. Laws ch. 4, §108, pp. 51–52; 1912 Minn. Laws, 1st Spec. Sess., ch. 3, p. 24; 1988 Minn. Laws ch. 578, Art. 3, §11, p. 594 (reenacting the prohibitions as part of §211B.11). There is no dispute that the political apparel ban applies only within the polling place, and covers articles of clothing and accessories with \"political insignia\" upon them. Minnesota election judges—temporary government employees working the polls on Election Day—have the authority to decide whether a particular item falls within the ban. App. to Pet. for Cert. I–1. If a voter shows up wearing a prohibited item, the election judge is to ask the individual to conceal or remove it. Id., at I–2. If the individual refuses, the election judge must allow him to vote, while making clear that the incident \"will be recorded and referred to appropriate authorities.\" Ibid. Violators are subject to an administrative process before the Minnesota Office of Administrative Hearings, which, upon finding a violation, may issue a reprimand or impose a civil penalty. Minn. Stat. §§211B.32, 211B.35(2) (2014). That administrative body may also refer the complaint to the county attorney for prosecution as a petty misdemeanor; the maximum penalty is a $300 fine. §§211B.11(4) (Supp. 2017), 211B.35(2) (2014), 609.02(4a) (2016). B Petitioner Minnesota Voters Alliance (MVA) is a nonprofit organization that \"seeks better government through election reforms.\" Pet. for Cert. 5. Petitioner Andrew Cilek is a registered voter in Hennepin County and the executive director of MVA; petitioner Susan Jeffers served in 2010 as a Ramsey County election judge. Five days before the November 2010 election, MVA, Jeffers, and other likeminded groups and individuals filed a lawsuit in Federal District Court challenging the political apparel ban on First Amendment grounds. The groups—calling themselves \"Election Integrity Watch\" (EIW)—planned to have supporters wear buttons to the polls printed with the words \"Please I. D. Me,\" a picture of an eye, and a telephone number and web address for EIW. (Minnesota law does not require individuals to show identification to vote.) One of the individual plaintiffs also planned to wear a \"Tea Party Patriots\" shirt. The District Court denied the plaintiffs’ request for a temporary restraining order and preliminary injunction and allowed the apparel ban to remain in effect for the upcoming election. In response to the lawsuit, officials for Hennepin and Ramsey Counties distributed to election judges an \"Election Day Policy,\" providing guidance on the enforcement of the political apparel ban. The Minnesota Secretary of State also distributed the Policy to election officials throughout the State. The Policy specified that examples of apparel falling within the ban \"include, but are not limited to\": \"• Any item including the name of a political party in Minnesota, such as the Republican, [Democratic-Farmer-Labor], Independence, Green or Libertarian parties. • Any item including the name of a candidate at any election. • Any item in support of or opposition to a ballot question at any election. • Issue oriented material designed to influence or impact voting (including specifically the ‘Please I. D. Me’ buttons). • Material promoting a group with recognizable political views (such as the Tea Party, MoveOn.org, and so on).\" App. to Pet. for Cert. I–1 to I–2. As alleged in the plaintiffs’ amended complaint and supporting declarations, some voters associated with EIW ran into trouble with the ban on Election Day. One individual was asked to cover up his Tea Party shirt. Another refused to conceal his \"Please I. D. Me\" button, and an election judge recorded his name and address for possible referral. And petitioner Cilek—who was wearing the same button and a T-shirt with the words \"Don’t Tread on Me\" and the Tea Party Patriots logo—was twice turned away from the polls altogether, then finally permitted to vote after an election judge recorded his information. Back in court, MVA and the other plaintiffs (now joined by Cilek) argued that the ban was unconstitutional both on its face and as applied to their apparel. The District Court granted the State’s motions to dismiss, and the Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. Minnesota Majority v. Mansky, 708 F. 3d 1051 (2013). In evaluating MVA’s facial challenge, the Court of Appeals observed that this Court had previously upheld a state law restricting speech \"related to a political campaign\" in a 100-foot zone outside a polling place; the Court of Appeals determined that Minnesota’s law likewise passed constitutional muster. Id., at 1056– 1058 (quoting Burson, 504 U. S., at 197 (plurality opinion)). The Court of Appeals reversed the dismissal of the plaintiffs’ as-applied challenge, however, finding that the District Court had improperly considered matters outside the pleadings. 708 F. 3d, at 1059. Judge Shepherd concurred in part and dissented in part. In his view, Minnesota’s broad restriction on political apparel did not \"rationally and reasonably\" serve the State’s asserted interests. Id., at 1062. On remand, the District Court granted summary judgment for the State on the as-applied challenge, and this time the Court of Appeals affirmed. Minnesota Majority v. Mansky, 849 F. 3d 749 (2017). MVA, Cilek, and Jeffers (hereinafter MVA) petitioned for review of their facial First Amendment claim only. We granted certiorari. 583 U. S. ___ (2017). II The First Amendment prohibits laws \"abridging the freedom of speech.\" Minnesota’s ban on wearing any \"political badge, political button, or other political insignia\" plainly restricts a form of expression within the protection of the First Amendment. But the ban applies only in a specific location: the interior of a polling place. It therefore implicates our \"‘forum based’ approach for assessing restrictions that the government seeks to place on the use of its property.\" International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 678 (1992) (ISKCON). Generally speaking, our cases recognize three types of government-controlled spaces: traditional public forums, designated public forums, and nonpublic forums. In a traditional public forum—parks, streets, sidewalks, and the like—the government may impose reasonable time, place, and manner restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited. See Pleasant Grove City v. Summum, 555 U. S. 460, 469 (2009). The same standards apply in designated public forums—spaces that have \"not traditionally been regarded as a public forum\" but which the government has \"intentionally opened up for that purpose.\" Id., at 469–470. In a nonpublic forum, on the other hand—a space that \"is not by tradition or designation a forum for public communication\"—the government has much more flexibility to craft rules limiting speech. Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 46 (1983). The government may reserve such a forum \"for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.\" Ibid. This Court employs a distinct standard of review to assess speech restrictions in nonpublic forums because the government, \"no less than a private owner of property,\" retains the \"power to preserve the property under its control for the use to which it is lawfully dedicated.\" Adderley v. Florida, 385 U. S. 39, 47 (1966). \"Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.\" Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 799–800 (1985). Accordingly, our decisions have long recognized that the government may impose some content-based restrictions on speech in nonpublic forums, including restrictions that exclude political advocates and forms of political advocacy. See id., at 806–811; Greer v. Spock, 424 U. S. 828, 831–833, 838–839 (1976); Lehman v. Shaker Heights, 418 U. S. 298, 303–304 (1974) (plurality opinion); id., at 307–308 (Douglas, J., concurring in judgment). A polling place in Minnesota qualifies as a nonpublic forum. It is, at least on Election Day, government-controlled property set aside for the sole purpose of voting. The space is \"a special enclave, subject to greater restriction.\" ISKCON, 505 U. S., at 680. Rules strictly govern who may be present, for what purpose, and for how long. See Minn. Stat. §204C.06 (2014). And while the four-Justice plurality in Burson and Justice Scalia’s concurrence in the judgment parted ways over whether the public sidewalks and streets surrounding a polling place qualify as a nonpublic forum, neither opinion suggested that the interior of the building was anything but. See 504 U. S., at 196–197, and n. 2 (plurality opinion); id., at 214–216 (opinion of Scalia, J.). We therefore evaluate MVA’s First Amendment challenge under the nonpublic forum standard. The text of the apparel ban makes no distinction based on the speaker’s political persuasion, so MVA does not claim that the ban discriminates on the basis of viewpoint on its face. The question accordingly is whether Minnesota’s ban on political apparel is \"reasonable in light of the purpose served by the forum\": voting. Cornelius, 473 U. S., at 806. III A We first consider whether Minnesota is pursuing a permissible objective in prohibiting voters from wearing particular kinds of expressive apparel or accessories while inside the polling place. The natural starting point for evaluating a First Amendment challenge to such a restriction is this Court’s decision in Burson, which upheld a Tennessee law imposing a 100-foot campaign-free zone around polling place entrances. Under the Tennessee law—much like Minnesota’s buffer-zone provision—no person could solicit votes for or against a candidate, party, or ballot measure, distribute campaign materials, or \"display . . . campaign posters, signs or other campaign materials\" within the restricted zone. 504 U. S., at 193–194 (plurality opinion). The plurality found that the law withstood even the strict scrutiny applicable to speech restrictions in traditional public forums. Id., at 211. In his opinion concurring in the judgment, Justice Scalia argued that the less rigorous \"reasonableness\" standard of review should apply, and found the law \"at least reasonable\" in light of the plurality’s analysis. Id., at 216. That analysis emphasized the problems of fraud, voter intimidation, confusion, and general disorder that had plagued polling places in the past. See id., at 200–204 (plurality opinion). Against that historical backdrop, the plurality and Justice Scalia upheld Tennessee’s determination, supported by overwhelming consensus among the States and \"common sense,\" that a campaign-free zone outside the polls was \"necessary\" to secure the advantages of the secret ballot and protect the right to vote. Id., at 200, 206–208, 211. As the plurality explained, \"[t]he State of Tennessee has decided that [the] last 15 seconds before its citizens enter the polling place should be their own, as free from interference as possible.\" Id., at 210. That was not \"an unconstitutional choice.\" Ibid. MVA disputes the relevance of Burson to Minnesota’s apparel ban. On MVA’s reading, Burson considered only \"active campaigning\" outside the polling place by campaign workers and others trying to engage voters approaching the polls. Brief for Petitioners 36–37. Minnesota’s law, by contrast, prohibits what MVA characterizes as \"passive, silent\" self-expression by voters themselves when voting. Reply Brief 17. MVA also points out that the plurality focused on the extent to which the restricted zone combated \"voter intimidation and election fraud,\" 504 U. S., at 208—concerns that, in MVA’s view, have little to do with a prohibition on certain types of voter apparel. Campaign buttons and apparel did come up in the Burson briefing and argument, but neither the plurality nor Justice Scalia expressly addressed such applications of the law.1 Nor did either opinion specifically consider the interior of the polling place as opposed to its environs, and it is true that the plurality’s reasoning focused on campaign activities of a sort not likely to occur in an area where, for the most part, only voters are permitted while voting. At the same time, Tennessee’s law swept broadly to ban even the plain \"display\" of a campaign-related message, and the Court upheld the law in full. The plurality’s conclusion that the State was warranted in designating an area for the voters as \"their own\" as they enter the polling place suggests an interest more significant, not less, within that place. Id., at 210. In any event, we see no basis for rejecting Minnesota’s determination that some forms of advocacy should be excluded from the polling place, to set it aside as \"an island of calm in which voters can peacefully contemplate their choices.\" Brief for Respondents 43. Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that distinction. To be sure, our decisions have noted the \"nondisruptive\" nature of expressive apparel in more mundane settings. Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 576 (1987) (so characterizing \"the wearing of a T-shirt or button that contains a political message\" in an airport); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 508 (1969) (students wearing black armbands to protest the Vietnam War engaged in \"silent, passive expression of opinion, unaccompanied by any disorder or disturbance\"). But those observations do not speak to the unique context of a polling place on Election Day. Members of the public are brought together at that place, at the end of what may have been a divisive election season, to reach considered decisions about their government and laws. The State may reasonably take steps to ensure that partisan discord not follow the voter up to the voting booth, and distract from a sense of shared civic obligation at the moment it counts the most. That interest may be thwarted by displays that do not raise significant concerns in other situations. Other States can see the matter differently, and some do.2 The majority, however, agree with Minnesota that at least some kinds of campaign-related clothing and accessories should stay outside. 3 That broadly shared judgment is entitled to respect. Cf. Burson, 504 U. S., at 206 (plurality opinion) (finding that a \"widespread and time-tested consensus\" supported the constitutionality of campaign buffer zones). Thus, in light of the special purpose of the polling place itself, Minnesota may choose to prohibit certain apparel there because of the message it conveys, so that voters may focus on the important decisions immediately at hand. B But the State must draw a reasonable line. Although there is no requirement of narrow tailoring in a nonpublic forum, the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. See Cornelius, 473 U. S., at 808–809. Here, the unmoored use of the term \"political\" in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test. Again, the statute prohibits wearing a \"political badge, political button, or other political insignia.\" It does not define the term \"political.\" And the word can be expansive. It can encompass anything \"of or relating to government, a government, or the conduct of governmental affairs,\" Webster’s Third New International Dictionary 1755 (2002), or anything \"[o]f, relating to, or dealing with the structure or affairs of government, politics, or the state,\" American Heritage Dictionary 1401 (3d ed. 1996). Under a literal reading of those definitions, a button or T-shirt merely imploring others to \"Vote!\" could qualify. The State argues that the apparel ban should not be read so broadly. According to the State, the statute does not prohibit \"any conceivably ‘political’ message\" or cover \"all ‘political’ speech, broadly construed.\" Brief for Respondents 21, 23. Instead, the State interprets the ban to proscribe \"only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.\" Id., at 13; see id., at 19 (the ban \"applies not to any message regarding government or its affairs, but to messages relating to questions of governmental affairs facing voters on a given election day\"). At the same time, the State argues that the category of \"political\" apparel is not limited to campaign apparel. After all, the reference to \"campaign material\" in the first sentence of the statute—describing what one may not \"display\" in the buffer zone as well as inside the polling place—implies that the distinct term \"political\" should be understood to cover a broader class of items. As the State’s counsel explained to the Court, Minnesota’s law \"expand[s] the scope of what is prohibited from campaign speech to additional political speech.\" Tr. of Oral Arg. 50. We consider a State’s \"authoritative constructions\" in interpreting a state law. Forsyth County v. Nationalist Movement, 505 U. S. 123, 131 (1992). But far from clarifying the indeterminate scope of the political apparel provision, the State’s \"electoral choices\" construction introduces confusing line-drawing problems. Cf. Jews for Jesus, 482 U. S., at 575–576 (a resolution banning all \"First Amendment activities\" in an airport could not be saved by a \"murky\" construction excluding \"airport-related\" activity). For specific examples of what is banned under its standard, the State points to the 2010 Election Day Policy—which it continues to hold out as authoritative guidance regarding implementation of the statute. See Brief for Respondents 22–23. The first three examples in the Policy are clear enough: items displaying the name of a political party, items displaying the name of a candidate, and items demonstrating \"support of or opposition to a ballot question.\" App. to Pet. for Cert. I–2. But the next example—\"[i]ssue oriented material designed to influence or impact voting,\" id., at I–2—raises more questions than it answers. What qualifies as an \"issue\"? The answer, as far as we can tell from the State’s briefing and argument, is any subject on which a political candidate or party has taken a stance. See Tr. of Oral Arg. 37 (explaining that the \"electoral choices\" test looks at the \"issues that have been raised\" in a campaign \"that are relevant to the election\"). For instance, the Election Day Policy specifically notes that the \"Please I. D. Me\" buttons are prohibited. App. to Pet. for Cert. I–2. But a voter identification requirement was not on the ballot in 2010, see Brief for Respondents 47, n. 24, so a Minnesotan would have had no explicit \"electoral choice\" to make in that respect. The buttons were nonetheless covered, the State tells us, because the Republican candidates for Governor and Secretary of State had staked out positions on whether photo identification should be required. Ibid.; see App. 58–60.4 A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable. Candidates for statewide and federal office and major political parties can be expected to take positions on a wide array of subjects of local and national import. See, e.g., Democratic Platform Committee, 2016 Democratic Party Platform (approved July 2016) (stating positions on over 90 issues); Republican Platform Committee, Republican Platform 2016 (approved July 2016) (similar). Would a \"Support Our Troops\" shirt be banned, if one of the candidates or parties had expressed a view on military funding or aid for veterans? What about a \"#MeToo\" shirt, referencing the movement to increase awareness of sexual harassment and assault? At oral argument, the State indicated that the ban would cover such an item if a candidate had \"brought up\" the topic. Tr. of Oral Arg. 64–65. The next broad category in the Election Day Policy—any item \"promoting a group with recognizable political views,\" App. to Pet. for Cert. I–2—makes matters worse. The State construes the category as limited to groups with \"views\" about \"the issues confronting voters in a given election.\" Brief for Respondents 23. The State does not, however, confine that category to groups that have endorsed a candidate or taken a position on a ballot question. Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an \"issue[] confronting voters in a given election.\" For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all have stated positions on matters of public concern.5 If the views of those groups align or conflict with the position of a candidate or party on the ballot, does that mean that their insignia are banned? See id., at 24, n. 15 (representing that \"AFL–CIO or Chamber of Commerce apparel\" would be banned if those organizations \"had objectively recognizable views on an issue in the election at hand\"). Take another example: In the run-up to the 2012 election, Presidential candidates of both major parties issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude members on the basis of sexual orientation.6 Should a Scout leader in 2012 stopping to vote on his way to a troop meeting have been asked to cover up his uniform? The State emphasizes that the ban covers only apparel promoting groups whose political positions are sufficiently \"well-known.\" Tr. of Oral Arg. 37. But that requirement, if anything, only increases the potential for erratic application. Well known by whom? The State tells us the lodestar is the \"typical observer\" of the item. Brief for Respondents 21. But that measure may turn in significant part on the background knowledge and media consumption of the particular election judge applying it. The State’s \"electoral choices\" standard, considered together with the nonexclusive examples in the Election Day Policy, poses riddles that even the State’s top lawyers struggle to solve. A shirt declaring \"All Lives Matter,\" we are told, could be \"perceived\" as political. Tr. of Oral Arg. 41. How about a shirt bearing the name of the National Rifle Association? Definitely out. Id., at 39–40. That said, a shirt displaying a rainbow flag could be worn \"unless there was an issue on the ballot\" that \"related somehow . . . to gay rights.\" Id., at 38 (emphasis added). A shirt simply displaying the text of the Second Amendment? Prohibited. Id., at 40. But a shirt with the text of the First Amendment? \"It would be allowed.\" Ibid. \"[P]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.\" Ward v. Rock Against Racism, 491 U. S. 781, 794 (1989). But the State’s difficulties with its restriction go beyond close calls on borderline or fanciful cases. And that is a serious matter when the whole point of the exercise is to prohibit the expression of political views. It is \"self-evident\" that an indeterminate prohibition carries with it \"[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.\" Jews for Jesus, 482 U. S., at 576; see Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 649 (1981) (warning of the \"more covert forms of discrimination that may result when arbitrary discretion is vested in some governmental authority\"). Election judges \"have the authority to decide what is political\" when screening individuals at the entrance to the polls. App. to Pet. for Cert. I–1. We do not doubt that the vast majority of election judges strive to enforce the statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary. But that discretion must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as \"political.\" And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it. That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing displays (including apparel) in more lucid terms. See, e.g., Cal. Elec. Code Ann. §319.5 (West Cum. Supp. 2018) (prohibiting \"the visible display . . . of information that advocates for or against any candidate or measure,\" including the \"display of a candidate’s name, likeness, or logo,\" the \"display of a ballot measure’s number, title, subject, or logo,\" and \"[b]uttons, hats,\" or \"shirts\" containing such information); Tex. Elec. Code Ann. §61.010(a) (West 2010) (prohibiting the wearing of \"a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election\"). We do not suggest that such provisions set the outer limit of what a State may proscribe, and do not pass on the constitutionality of laws that are not before us. But we do hold that if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one Minnesota has offered here. Cases like this \"present[] us with a particularly difficult reconciliation: the accommodation of the right to engage in political discourse with the right to vote.\" Burson, 504 U. S., at 198 (plurality opinion). Minnesota, like other States, has sought to strike the balance in a way that affords the voter the opportunity to exercise his civic duty in a setting removed from the clamor and din of electioneering. While that choice is generally worthy of our respect, Minnesota has not supported its good intentions with a law capable of reasoned application. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."}

]

}